01-0884 SOMMERS V. STATE

State: Florida

Court: Florida Southern District Court

Docket No: 3d01-0884

Case Date: 11/06/2002

Plaintiff: 01-0884 SOMMERS

Defendant: STATE

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2002

STEVEN MITCHELL SOMMERS, Appellant, vs. THE STATE OF FLORIDA, Appellee. ** ** ** **

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CASE NO. 3D01-884 LOWER TRIBUNAL NO. 92-26662

Opinion filed November 6, 2002. An Appeal from the Circuit Court for Miami-Dade County, Pedro P. Echarte, Jr., Judge. Michael H. Bloom; Amanda Maxwell, for appellant. Robert A. Butterworth, Attorney General, and Jill K. Traina, Assistant Attorney General, for appellee.

Before GREEN, FLETCHER and SHEVIN, JJ.

SHEVIN, Judge. Steven Sommers appeals a sentence imposed upon revocation of probation. We reverse.

Upon conviction, Sommers was sentenced to concurrent twelve-year prison terms on counts I and II, and a consecutive ten-year term of probation on count III. After serving his

prison sentence, Sommers began serving probation on count III. On May 25, 1999, on the state's affidavit of violation of probation, the court found that Sommers violated probation and sentenced him to two years community control, followed by 10 years of probation. Thereafter, on March 28, 2000, the state Based on a plea, the

filed a second affidavit of violation.

court sentenced Sommers to two years community control with monitoring, followed by ten years probation.1 On February 7, After a

2001, the state filed a third affidavit of violation.

hearing, the trial court sentenced Sommers to a guidelines sentence of fifteen years in prison. The court did not give

Sommers credit for the time served on counts I and II. Sommers appeals. The threshold issue in this case is whether defendant preserved the argument presented on appeal, attacking the

The Plea Agreement provides: "The defendant will be given credit for all time served since March 28, 2000." This, however, does not amount to a global waiver of credit for all time served, as the state suggests. Additionally, although the Plea Agreement contains an acknowledgment that a violation may subject defendant to the "maximum penalties provided by law," this is not a tacit agreement to the sentence attacked in this appeal. -2-

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trial court's failure to award Sommers credit for the time served on counts I and II, on the sentence upon violation of probation in count III. We agree with the state that this The Criminal Appeal

argument was not properly preserved.

Reform Act,

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