Kristina Lawhon-Griffis v. State of Florida , 2015 Fla. App. LEXIS 18022 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
KRISTINA LAWHON-GRIFFIS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D15-469
[December 2, 2015]
Appeal of order denying rule 3.800 motion from the Circuit Court for
the Nineteenth Judicial Circuit, Okeechobee County; Sherwood Bauer, Jr.,
Judge; L.T. Case Nos. 2005CF000707 and 2004CF000661.
Kristina Lawhon-Griffis, Ocala, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.
MAY, J.
The defendant appeals three orders: (1) denying her motion to correct
her sentence in 2004-CF-661; (2) denying her motion to correct her
sentence in 2005-CF-707 and sua sponte amending the sentence as to
time served for Counts 15-21; and (3) denying her motion to clarify
sentence in both cases.1
The defendant entered an open plea in case numbers 2004-CF-661 and
2005-CF-707, and was sentenced. She did not appeal her convictions or
sentences.
She first filed a rule 3.850 motion, which the trial court summarily
1Because Florida Rule of Appellate Procedure 9.141(b) requires the clerk to send
a limited record in appeals of post-conviction proceedings, we do not always
receive the original sentencing documents to review. This is one of those cases.
Had we received the sentencing documents, we might have been able to resolve
this dispute without sending the case back to the trial court for further action.
denied; we affirmed. Lawhon-Griffis v. State, 4 So. 3d 769, 770 (Fla. 4th
DCA 2009). She then filed a pro se motion to correct sentence in each
case, and subsequently filed a motion to clarify sentence, which resulted
in the three orders now on appeal.
In the first motion to correct sentence in the 2004 case, the defendant
alleged she was convicted of multiple counts of grand theft/uttering a
forged instrument after she pled to the charges in 2006. She was
sentenced to a split sentence of three years in prison followed by five years
of probation. She later pled guilty to a violation of probation (“VOP”) and
was resentenced to four years in prison. She was awarded 109 days of jail
credit, but was not given credit for prison time served. She alleged she did
not waive credit for prison time served on the original sentence.
The trial court summarily denied the motion, quoting the sentencing
court as stating that the “Department of Corrections shall apply original
jail credit and shall compute and apply credit for time served only
pursuant to Section 921.0012, Florida Statutes (2001).” The court
concluded the defendant had been awarded all the credit she sought, but
did not attach any portions of the record in support of this conclusion.
In the motion to correct sentence in the 2005 case, the defendant
alleged she was convicted of multiple counts of grand theft, uttering a
forged instrument and forgery/uttering after she entered her plea in 2006.
The court sentenced her to five years in prison, followed by five years of
probation. She alleged she completed the prison sentence and was
released on probation. In 2014, she pled guilty to a VOP and was
sentenced to four years in prison with 109 days of jail credit, but no credit
for the prison time served. She sought credit for the prison time served.2
The trial court summarily denied the motion, noting that the VOP
sentences were for probation only. Any counts for which she was originally
sentenced to prison had been completed. On Counts 15-21, she was
sentenced to probation for forty-eight months with credit for three days
2 The defendant relied on Tripp v. State, 622 So. 2d 941 (Fla. 1993), in support of
her claim for credit. The “Tripp rule” applies where a defendant is sentenced
under the sentencing guidelines to a term of prison for one offense, followed by a
term of probation on another offense. Id. at 942–43. The defendant did not allege
that this occurred in her case. And, the “Tripp rule” does not apply to sentences
imposed under the Criminal Punishment Code. Owens v. State, 41 So. 3d 372,
374 (Fla. 4th DCA 2010) (citing Moore v. State, 882 So. 2d 977 (Fla. 2004)). Tripp
is inapplicable.
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served prior to the violation hearing. There was no prior prison time served
for purposes of her request for credit on those counts.
The court noted, however, that the written sentence for Counts 15-21
contained a scrivener’s error because it provided for 109 days of time
served when only nine days had been orally pronounced. The trial court
ordered the clerk to prepare an amended sentence for those counts. The
trial court did not attach any portion of the record in support.
In her January 2015 motion to clarify sentence, the defendant alleged
she was convicted and sentenced at a 2014 VOP sentencing hearing in the
2004 and 2005 cases. She alleged her probationary term in the 2004 case
was terminated or revoked with “no new sanction” and that she was
sentenced to four years in prison only in the 2005 case. She further
alleged that transcripts from the VOP sentencing hearing demonstrated
she was not sentenced to a new prison term in the 2004 case.
The trial court denied this motion, finding that “[t]here is no basis in
fact. The Court reviewed the oral pronouncement on the sentence in 2004-
CF-661 and it is correct.” Once again, however, the trial court did not
attach portions of the record to the order.
The defendant has appealed all three orders. On the denial of the first
motion in the 2004 case, the State responds that the trial court order
directed the Department of Corrections to apply original jail credit and
credit for time served, pursuant to section 921.0012, Florida Statutes.
However, that provision does not address the defendant’s claim to credit
for prison time served prior to the VOP.
The State acknowledges that the record in the 2004 case fails to
conclusively refute the defendant’s allegations. We therefore reverse and
remand the case to the trial court for attachment of portions of the record
that refute her claim. Fenelon v. State, 932 So. 2d 431, 431 (Fla. 4th DCA
2006).
We affirm the denial of the defendant’s claim for Tripp credit made in
the second motion in the 2005 case for the reasons discussed above.
However, the defendant also made a claim for prison credit after the VOP
in the 2005 case. We affirm the summary denial of this motion without
prejudice to the defendant filing an amended motion in good faith,
identifying the counts on which her claim for prison credit is based, and
providing record support for her claim. Woody v. State, 993 So. 2d 1158,
1159 (Fla. 4th DCA 2008). The trial court can then consider whether the
defendant is entitled to credit on the sentence imposed after the VOP,
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including whether she received a consecutive term of probation which
could preclude additional credit.
Concerning the defendant’s 2015 motion to clarify, the State argues
that the defendant should have attached a copy of the transcript, but failed
to do so. It suggests that we affirm without prejudice to allow the
defendant to file a motion which demonstrates entitlement to relief on the
face of the record. However, the motion sufficiently alleged a discrepancy
between the oral and written sentence imposed in the 2004 case. The trial
court summarily denied the motion based on its review of the oral
pronouncement at sentencing, but did not attach the transcript. We must
therefore reverse and remand the case for attachment of the portions of
the record that support the trial court’s summary denial of this motion.
Williams v. State, 957 So. 2d 600, 604–05 (Fla. 2007).
We therefore affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.
Reversed and Remanded.
WARNER and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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