JARRED RASHAD BURGESS vs STATE OF FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JARRED RASHAD BURGESS,
Appellant,
v. Case Nos. 5D22-2761
5D22-2762
STATE OF FLORIDA, 5D22-2763
LT Case Nos. 2020-CF-001032-A
Appellee. 2019-CF-003193-A
2021-CF-000533-A
________________________________/
Opinion filed June 16, 2023
Appeal from the Circuit Court
for Seminole County,
Melissa Souto, Judge.
Matthew J. Metz, Public Defender,
and Ryan M. Belanger, Assistant
Public Defender, Daytona Beach, for
Appellant.
Ashley Moody, Attorney General,
Tallahassee, and Deborah A.
Chance and Roberts J. Bradford, Jr.,
Assistant Attorneys General,
Daytona Beach, for Appellee.
LAMBERT, C.J.
In these consolidated appeals, Jarred Burgess challenges the trial
court’s orders revoking his community control in three cases below and the
judgments and sentences thereafter imposed. Burgess was originally
sentenced to concurrent probationary terms for several third-degree felonies
in circuit court case numbers 2019-CF-3193 and 2020-CF-1032. Burgess
then allegedly violated that probation, and while his violation of probation
proceedings were pending, Burgess was charged with another third-degree
felony 1 in circuit court case number 2021-CF-533. Upon revocation of
Burgess’s probation, by negotiated plea, the trial court imposed identical
concurrent split sentences on all charges in all three cases for 181 days in
jail (with 181 days of jail credit), six months of community control, and thirty-
six months of drug offender probation.
Eight days after imposition of the sentences, Burgess’s community
control officer filed an affidavit alleging that Burgess had violated his
community control by failing to report and “absconding” from supervision.
Following revocation of his community control, Burgess was sentenced by
the court to serve a split sentence of thirty months in prison, to be followed
by twenty-four months of drug offender probation, on all counts in each case,
1
Burgess was charged with several other offenses in circuit court case
number 2021-CF-533, but the disposition of those charges is not pertinent to
the instant appeal.
2
with the sentences to be served concurrently.
We affirm the revocation of Burgess’s community control without
further discussion. For the following reasons, we reverse the judgments and
sentences in circuit court cases 2019-CF-3193 and 2020-CF-1032; and we
remand with directions for the trial court to enter amended judgments and
sentences that award Burgess credit against his twenty-four-month drug
offender probation sentences for the time that Burgess had previously
served on probation in these two cases.
In Waters v. State, 662 So. 2d 332, 333 (Fla. 1995), the Florida
Supreme Court held that when a trial court imposes a new term of probation
as part of a split sentence following revocation, it must give credit to a
defendant for the time the defendant previously served on probation in the
case if the new term of probation, together with the other sanctions imposed,
plus the time the defendant previously served on probation, totals more than
the statutory maximum for the underlying offense. Waters is applicable here.
In circuit court case numbers 2019-CF-3193 and 2020-CF-1032,
Burgess had previously served more than six months of probation before his
earlier term of probation in each case was revoked. When this prior
probation credit is added to Burgess’s current split sentences of thirty months
in prison, plus the new twenty-four months of drug offender probation, the
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aggregate total exceeds the statutory cap of five years 2 for his third-degree
felonies. Accordingly, Burgess is entitled to an award of his probation credit
previously earned in each case.
We therefore reverse Burgess’s judgments and sentences in circuit
court case numbers 2019-CF-3193 and 2020-CF-1032. We remand with
directions for the trial court to first calculate the specific amount of Burgess’s
prior probation credit in these cases and to then enter amended judgments
and sentences awarding Burgess this probation credit against his respective
twenty-four-month terms of drug offender probation. See Adams v. State,
207 So. 3d 252, 253 (Fla. 5th DCA 2016).
Lastly, as previously mentioned, this consolidated appeal includes a
third case. Burgess is also appealing the revocation of his community control
in circuit court case number 2021-CF-533 and the resulting judgment and
sentence. However, because Burgess had not previously been on probation
in this third case prior to the imposition of his current split sentence, the
above-described sentencing infirmity in his other two cases is not
applicable.3 Accordingly, we affirm Burgess’s judgment and sentence in
circuit court case number 2021-CF-533 in all respects.
2
See § 775.082(3)(e), Fla. Stat. (2019).
3
We also note that the evidence at Burgess’s trial showed that he
never actually reported to his community control officer. As such, there is no
4
AFFIRMED, in part; REVERSED, in part; REMANDED, with directions.
MAKAR and BOATWRIGHT, JJ., concur.
separate community control credit to be computed and applied towards his
new terms of probation in his cases. See Jacoby v. State, 215 So. 3d 168,
171 (Fla. 2d DCA 2017).
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