08-3685 PATRICK A. FAIRCLOTH, v. STATE OF FLORIDA

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State: Florida

Court: Florida First District Court

Docket No: 08-3685

Case Date: 12/29/2010

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA PATRICK A. FAIRCLOTH, Appellant/Cross-Appellee, v. STATE OF FLORIDA, Appellee/Cross-Appellant. _____________________________/ Opinion filed December 29, 2010. An appeal from the Circuit Court for Leon County. James C. Hankinson, Judge, and Angela C. Dempsey, Judge. Laura Anstead, Assistant Conflict Counsel, and Jeffrey Lewis, Regional Conflict Counsel, Region One, Tallahassee, for Appellant. Bill McCollum, Attorney General, and Ian M. Cotner, Assistant Attorney General, Tallahassee, for Appellee. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D08-3685

PER CURIAM. Appellant, Patrick A. Faircloth, challenges the revocation of his probation, contending the State failed to prove various new law violations alleged in the violation of probation report. On cross-appeal, the State claims error in the

allocation of credit for time served to both counts of consecutive sentences. We

reverse and remand for reconsideration of the revocation, and, if upheld, appropriate modification of the sentences. On May 21, 2004, the State charged appellant by information with aggravated stalking (Count I) and attempted burglary of a dwelling (Count II). After Faircloth entered a plea of nolo contendere to the offenses as charged, the trial court sentenced appellant to 286 days in county jail (less 286 days for time served) and 36 months' probation, the sentences to run concurrently. On

February 11, 2005, the court entered a judgment and sentence adjudicating appellant guilty of the crimes alleged. On January 22, 2007, the State filed a violation of probation report alleging that Faircloth failed to live and remain at liberty without violating the law by committing the criminal offenses of resisting an officer with violence, fleeing and eluding a law enforcement officer, driving while license suspended, and battery on a law enforcement officer. The State filed two addendums to the report, alleging that appellant also gave a false identity to a law enforcement officer and committed fraud by insufficient funds. After a hearing on the alleged violations, the trial court (Judge Hankinson) found that Faircloth violated the terms of his probation by giving a false identity to a law enforcement officer, resisting an officer without violence, driving while license suspended, and battery on a law enforcement officer. As a result of these 2

new law violations, the court revoked probation on each count and adjudicated appellant guilty of the underlying offenses. The court sentenced Faircloth to 60 months in prison with credit for 439 days' time served on Count I (aggravated stalking) and 24 months in prison on Count II (attempted burglary of a dwelling). In a written order revoking probation, the court announced that the sentences were to run consecutively. In an amended motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), appellant asserted an entitlement to 792 days' credit for time served. Reasoning that the court had sentenced him to concurrent terms on the original convictions, Faircloth also argued that the court should have allocated the jail time credit to both Counts I and II. In its response, the State advocated that the motion be granted in part and denied in part. Though raising some minor disagreements with the computation of gain time, for purposes of this cross-appeal, the State argued that appellant was entitled to this credit on only one of the counts, because the court (Judge Hankinson) ultimately resentenced appellant to consecutive, rather than concurrent, terms. On June 22, 2009, the trial court (Judge Dempsey) entered an order granting the amended motion in its entirety. We review an order revoking probation for abuse of discretion. See State v. Carter, 835 So. 2d 259, 262 (Fla. 2002) (recognizing that the "trial court has broad 3

discretion to determine whether there has been a willful and substantial violation of a term of probation and whether such a violation has been demonstrated by the greater weight of the evidence" (citing Van Wagner v. State, 677 So. 2d 314 (Fla. 1st DCA 1996))). As Faircloth points out, knowledge of the license suspension is a requisite element of the crime of driving while license suspended. See

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