Gonzalez v. State , 2016 Fla. App. LEXIS 3570 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed March 9, 2016.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D15-2134
Lower Tribunal No. 02-4050
Nelson Vladimir Gonzalez,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from
the Circuit Court for Miami-Dade County, Victoria R. Brennan, Judge.
Nelson Vladimir Gonzalez, in proper person.
Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney
General, for appellee.
Before SHEPHERD, EMAS and LOGUE, JJ.
EMAS, J.
Nelson Vladimir Gonzalez seeks review of the trial court’s denial of his
motion to correct sentence. We hold that the trial court erred in not properly
awarding Gonzalez the credit for prison time he previously served on his
probationary split sentence. Further, given the clear and unequivocal intent of the
trial court, as articulated in the sentencing hearing below, we reverse and remand
so that the trial court may restructure the sentence to reflect the trial court’s
articulated sentencing goal, while properly awarding the prison credit to which
Gonzalez is entitled.
The salient facts are not in dispute. In May 2004, Gonzalez entered into a
negotiated plea, and received a probationary split sentence of ten years’
imprisonment, followed by ten years of probation. In August 2010, Gonzalez was
released from the incarcerative portion of his sentence, and began serving his
probation. Gonzalez thereafter violated his probation and, following a probation
violation hearing, the trial court revoked his probation and sentenced him to fifteen
years in prison. In imposing this sentence, the trial court awarded credit of
approximately seven months from December 4, 2012 (the date he was taken into
custody on the probation violation) until June 25, 2013 (the date of the sentencing).
Had the court awarded Gonzalez all credit due (i.e., the approximately seven
months described above plus the six years and three months he previously served
in prison), Gonzalez would have been credited approximately six years and ten
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months against his fifteen-year sentence (resulting in a “net” sentence of
approximately eight years and two months).
As the State properly concedes, the failure of the trial court to award all of
the prior prison credit was error. Gonzalez was entitled to receive credit not only
for the time he spent in the county jail awaiting his probation violation hearing, but
was entitled to credit for the time he previously spent in prison on his probationary
split sentence:
A defendant sentenced to a probationary split sentence who violates
probation and is resentenced to prison is entitled to credit for all time
actually served in prison prior to his release on probation unless such
credit is waived. The defendant is entitled to such credit even when it
results in a “windfall” requiring immediate release.
Dortly v. State, 107 So. 3d 1229, 1230 (Fla. 1st DCA 2013) (internal citations
omitted). See also Sainvilus v. State, 689 So. 2d 1261, 1261-62 (Fla. 3d DCA
1997) (holding that “[a] prisoner who is sentenced to prison for violating probation
is entitled to credit for time actually served in prison, prior to commencement of
the probationary term”).
The trial court should properly have awarded Gonzalez a total credit of
approximately six years and ten months. Nevertheless, the State urges that the
circumstances of this case, clearly and unequivocally established by the record
below, militate against merely reversing and remanding with directions to award
Gonzalez the additional credit and that we should instead remand to direct the trial
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court to award the proper credit while permitting the trial court to restructure the
sentence to carry out its expressly articulated sentencing goal. Based upon our
review of the record below and the case law in our district, we agree.
Our conclusion is controlled by this court’s decision in Toombs v. State, 404
So. 2d 766 (Fla. 3d DCA 1981). In Toombs, as here, the defendant entered a plea
and was sentenced to a prison term to be followed by probation. He served three
years in prison and upon his release, violated his probation. Following a
revocation hearing, Toombs was found in violation and sentenced to a year and a
day, but the court did not award any credit for the prison time Toombs had
previously served. Although we held that as a matter of law Toombs was entitled
to credit for the three years he had previously served, it did not mean (as Toombs
argued) that he was therefore entitled to release given the court’s sentence of a year
and a day in prison. Instead, we observed:
It is clear from the transcript of sentencing that when the trial court
imposed this sentence upon Toombs, it was aware that Toombs had
served three years in prison and fully intended that Toombs serve an
additional year for having violated his probation. . . . It is apparent
that had the trial court imposed a four-year prison sentence on
Toombs (who could have been sentenced, under the original offense
charged, to up to fifteen years in prison when his probation was
revoked) and credited Toombs with the three years served, it would
have accomplished its sentencing goal. Since it was so clearly the
trial court’s intent that Toombs serve an additional year in prison, and
since the trial court was empowered to impose a sentence of sufficient
length after crediting the time served to carry out that intent, . . . we
reject Toombs’ argument that the trial court’s technical error results in
setting Toombs free.
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Id. at 768.
In Toombs, we reversed the sentence and remanded the case to the trial court
to award the proper amount of credit for time previously served by Toombs, and to
permit the trial court to impose a restructured sentence consistent with the trial
court’s clearly and unequivocally articulated original sentencing goal. See also
Mathis v. State, 649 So. 2d 279 (Fla. 3d DCA 1995) (reversing sentence that did
not properly award credit for time served but remanding to award proper credit and
to permit trial court to restructure sentence to carry out the trial court’s clear
sentencing intent).1
Gonzalez contends that Toombs does not apply because the proper award of
credit in this case will not result in Gonzalez’s immediate release. We disagree.
While it surely may be easier to conclude that a trial court’s clear sentencing goal
cannot be met where a proper award of credit results in a defendant’s immediate
release, such circumstances are but a factor in the analysis. At bottom, the focus of
the analysis is on whether the record clearly and unequivocally establishes the trial
court’s articulated sentencing goal and whether that goal is undermined by a
reversal and remand for the sole purpose of awarding proper credit for time
previously served. Where the record clearly and unequivocally establishes the trial
1We recognize that the Fourth District, in Pendergrass v. State, 487 So. 2d 35 (Fla.
4th DCA 1986), declined to follow the reasoning of our decision in Toombs. We
certify express and direct conflict with Pendergrass.
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court’s articulated sentencing goal and further establishes that this goal would be
undermined by a reversal and remand for the sole purpose of awarding proper
credit for time previously served, we hold, consistent with Toombs, that the proper
remedy is to reverse the sentence and remand with directions that the court
properly award the credit while permitting the trial court the opportunity to
restructure the sentence to achieve its clear and unequivocal sentencing goal as
articulated at the original sentencing.
An objective review of the sentencing transcript leaves no reasonable doubt
about the court’s intent in sentencing the defendant. At the commencement of the
sentencing hearing, the trial court asked the State what Gonzalez’s minimum
sentence was under the guidelines. The State advised the bottom of the guidelines
was 25.375 years.2 The court inquired if the State had made a plea offer to
Gonzalez prior to the probation violation hearing, and the State acknowledged it
had. The following transpired:
COURT: And you offered what [plea prior to the probation violation
hearing]?
STATE: I offered six years to revoke everything.
2 As indicated earlier, however, the 2004 negotiated plea was to a below-guidelines
sentence of ten years in prison followed by ten years of probation. The minimum
sentence under the guidelines was approximately twenty-four years. The State
indicated that the difference between the two guidelines’ calculations (twenty-four
years in 2004 and 25.375 in 2013) is the result of additional points for Gonzalez’s
violation of probation.
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COURT: With credit for time served so he gets right back out?
STATE: No, I believe that I had spoken with . . . defense counsel about
[credit time served] from the last booking date, and the last
booking date that I had written down and articulated was---
COURT: 12/4 of ’12.
STATE: Yes.
The court then asked if the State had a sentencing recommendation now that
Gonzalez had been found in violation of his probation. The State advised the court
that it believed (even after the probation violation hearing) that a sentence of
between seven and eight years was appropriate. It is clear from the State’s
sentencing position that it was recommending a “net” sentence of between seven
and eight years, akin to the earlier net sentence of six years it offered to Gonzalez
prior to the probation violation hearing (i.e., a sentence which included credit only
from the last booking date of December 4, 2012). It is plainly evident the State
was not recommending a sentence of seven to eight years with all credit for time
served, (i.e., approximately six years and ten months) which would have reduced
the State’s recommended sentence (of between seven and eight years) to a net
sentence of between two and fourteen months. More importantly, and as the
discussion below evidences, the trial court understood the State to be
recommending a net sentence of seven to eight years, a recommendation which the
trial court rejected in unmistakable terms.
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After the State set out its position of a net sentence of seven to eight years,
the court and State engaged in a further colloquy about this recommendation. The
court then heard from Gonzalez’s counsel and from Gonzalez himself. Following
this, the court explained its decision and announced its sentence:
COURT: Okay. Thank you, sir [Mr. Gonzalez]. You were—
remain standing. You were given a tremendous chance when
this crime was committed and what you did do back then
remains relevant today because of the choice you made. You
chose not to run the risk of going to prison for at least 25 years
by taking the plea that called for you to serve ten years in prison
followed by ten years of probation. That was a choice you
made. You took the easier softer way, you didn’t want to run
the risk. The facts of your case demonstrate a very serious and
egregious series of actions where you just didn’t endanger your
friend who because of you was killed, you endangered
everybody on that road that night, all those police officers, all
the people driving on the road. You led them on a high speed
chase the wrong way up ramps that people were supposed to
drive down, they threw things in the road to stop you, nothing
was going to stop you, and that’s why when you were charged
with these crimes you faced at least 25 years in prison.
***
I’m not going to give you 25 years, but I’m not going to give
you 7, I’m going to give you 15 years in state prison. And you
need to understand that the reason you’re getting that is not
because people are mean, it’s not because life is unfair, it’s
because you made decisions. And you need to think a little
harder about how much further you have to go to really have
been a changed man.
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Probation is revoked, 15 years in state prison, credit from time
served 12/4 of 2012.
In context, and given the nature and substance of the discussions during the
sentencing hearing, we conclude that the trial court articulated its clear and
unequivocal intent that Gonzalez receive a net sentence of fourteen years and five
months (i.e., fifteen years less the approximate seven months spent in jail awaiting
his probation violation hearing and sentencing), and plainly rejected the State’s
earlier recommendation of a net sentence of seven to eight years. If we were to
reverse and remand solely for the trial court to award the proper credit for time
served against the fifteen-year sentence (i.e., six years and ten months), the net
sentence would approximate the very sentence recommended by the State and
rejected by the trial court.
It is clear and unequivocal from the record that the trial court intended
Gonzalez to serve a net sentence of fourteen years and five months. Such a
sentence is lawful, as the court could have sentenced him (at the bottom of the
guidelines) to twenty-five years which, even with an award of all proper credit for
time served, would have resulted in a net sentence of approximately eighteen years
and two months. However, the manner in which the court attempted to effectuate
this net sentence was not lawful, as the sentence failed to include the prior prison
credit to which Gonzalez was entitled. Under these circumstances, reversal is
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required but, consistent with our decision in Toombs, the cause is remanded for the
trial court to restructure the sentence in such a way as to impose a lawful sentence
consistent with the trial court’s clear and unequivocally articulated original
sentencing goal, while awarding Gonzalez all of the credit for time served to which
he is legally entitled.
Reversed and remanded with instructions. Conflict certified.
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