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25 Sep 2012

Second DCA Reverses Sentence And Remands For Additional 15 Years Of Tripp Credit

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Success has been a long time coming, but how sweet it is! On October 14, 2009, the Second District Court of Appeal ordered a resentencing which will allow Sabrina Freeman-Jew an additional 15 years of credit.

Attorney Garland was retained four years ago to find some way to free Ms. Freeman-Jew from the shackles of her 55-year sentence. The first efforts were directed to the Florida Parole Commission, because it had revoked Ms. Freeman-Jew’s control release credits without notice or hearing. The Parole Commission denied the administrative petition.

Attorney Garland sought review of the Parole Commission’s denial by filing a petition for writ of mandamus in Leon County Circuit Court Case No. 2007CA280. On June 5, 2007, Circuit Judge Janet E. Ferris denied the petition, which Attorney Garland then appealed to the First District Court of Appeal. The First District also denied relief. Jew v. Florida Parole Commission, 969 So.2d 1021 (Fla. 1st DCA 2007).

Having exhausted “administrative remedies” dealing with the revocation of control release, Attorney Garland focused efforts on the Polk County Circuit Court, where Ms. Freeman-Jew was sentenced in 1996. Attorney Garland filed a motion to correct sentencing error which claimed that, among other things, the defendant did not receive the appropriate credit for time served pursuant to Tripp v. State, 622 So.2d 941 (Fla. 1993). Circuit Judge Neil A. Roddenberry denied the request for Tripp credit. Polk County Case No.’s CF91-398 and CF91-2133.

Attorney Garland appealed the denial of Tripp credit to the Second District Court of Appeal. The Second District agreed that Tripp credit of 15 years should be allowed. The Court’s October 14, 2009 opinion is set out below in its entirety. 18 So.3d 1254 (Fla. 2nd DCA 2009).

Attorney Garland’s core argument was that two separate 15-year sentences were both scored on the same sentencing guidelines score sheet when originally sentenced on October 28, 1991. At that time, the defendant was sentenced to 15 years in prison on one count, and consecutive probation on other charges. The defendant was arrested on new charges in 1995, which violated the probation. She was eventually sentenced, in 1996, to 25 years in prison as an habitual offender with a consecutive 15 years in prison on the violation of the 1991 probation. This adds up to 40 years.

After being sentenced to the combined 40-year prison term in Polk County in 1996, the Parole Commission acted without notice to revoke control release credits which had been granted for the 15-year sentence imposed in 1991. Without these credits, the defendant would be required to serve out the balance of the 15-year prison sentence imposed in 1991.

According to DOC’s Bureau of Sentencing Structure, the defendant would be required to complete the 1991 15-year prison term, then the 25-year habitual offender term, then the 15-year term for violating the 1991 probation. Effectively, the defendant was serving a 55-year prison term.

The Second District’s ruling will require the Polk County Circuit Court to allow the 15 years of Tripp credit. This will reduce the defendant’s overall sentence from 55 years to “just” 40 years.

These cases arose long before the 85% rule. The defendant will be entitled to gain time which will significantly advance her release date. The next step is to secure the Tripp credit in the form of a sentencing order. After that, Attorney Garland will request DOC to recalculate Tripp credit and gain time.

This case is by no means over. The Second District’s decision, however, is an important mile post in securing freedom for Ms. Freeman-Jew.

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

SABRINA FREEMAN-JEW,
)
)
Appellant,
)
)
v.
)
STATE OF FLORIDA,
)
)
Appellee.
)
                                                                             )

Opinion filed October 14, 2009.

Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Polk County; Neil A. Roddenbery, Judge.

Jeffrey H. Garland, P.A., Fort Pierce,
for Appellant.

Bill McCollum, Attorney General,
Tallahassee, and Ronald Napolitano,
Assistant Attorney General, Tampa,
for Appellee.

PER CURIAM.

Sabrina Freeman-Jew challenges the post-conviction court’s order denying her motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for the trial court to amend the sentencing documents in case number CF91-398 to reflect the appropriate credit for time served pursuant to Tripp v. State,622 So.2d 941 (Fla. 1993).

Freeman-Jew was charged in circuit court case number CF91-2133 with one count of second-degree felony grand theft for an offense alleged to have taken place between June and November 1990. In circuit court case number CF91-398, she was charged with, inter alia, multiple counts of forgery and uttering a forged instrument for events allegedly taking place in December 1990. All the counts in CF91-398 were third-degree felonies. Freeman-Jew entered guilty pleas to the grand theft in CF91-2133 and to four counts of forgery (counts one, five, nine and thirteen) and four counts of uttering (counts two, six, ten, and fourteen) in CF91-398. She was sentenced on October 28, 1991, according to the sentencing guidelines then in effect. See Fla. R. Crim. P. 3.701; 3.988. A score sheet was prepared listing the grand theft in CF91-2133 as the primary offense and the eight counts in CF91-398 as additional offenses. The value calculated by the score heet amounted to 232 points, giving a recommended sentencing range of twelve to seventeen years and a permitted range of nine to twenty-two years. See Fla. R. Crim. P. 3.988(f). The court imposed a fifteen-year prison sentence on the grand theft count in CF91-2133 and five-year probationary terms on each of the eight counts in CF91-398. The probationary terms were set to run concurrently with each other but consecutively to the prison term.

Freeman-Jew was released from prison and was subsequently arrested and convicted for a new offense. As a result, at a hearing held on June 4, 1996, the court revoked her probation in CF91-398. The court sentenced her to twenty-five years as a habitual felony offender for the new law violation and to a total of fifteen years in CF91-398, structured as three terms of five years each for counts one, five, and nine. The three five-year terms were set to run consecutively to each other and to the twenty-five-year sentence for the new law violation. With the remaining five counts in CF91-398, the court imposed fifteen years of probation consecutive to the prison sentence. In the sentencing document for count one of CF91-398, the court included a directive that credit for time served in CF91-2133 be applied to that five-year sentence.

Freeman-Jew argues that the sentencing court in 1996 failed to structure the written sentences in a way that would allow the Department of Corrections to apply prison credit in line with the requirements of Tripp, 622 So.2d at 942. She argues that because the sentencing court applied credit for time served to the five-year sentence on only one count in CF91-398 and not all three counts, the full potential fifteen years of Tripp credit cannot be effected. In denying the rule 3.800(a) motion, the post-conviction court concluded that any relief available to Freeman-Jew based on Tripp credit must be sought using the administrative process available to prisoners in the Department of Corrections.

In Tripp, the supreme court held that when a court imposes a post-revocation sentence where the original sanctions on two underlying offenses were prison for the first offense followed by probation for the second offense, the court is required to award credit for time served on the first offense toward the new prison sentence on the second offense. Id. at 942-43. Rule 3.800(a) may be used to challenge a trial court’s failure to award Tripp credit. See, e.g., Barnes v. State, 814 So.2d 1128 (Fla. 2d DCA 2002).

We conclude that the sentencing documents do not reflect the full amount of Tripp credit to which Freeman-Jew is entitled.We therefore reverse and remand for amendment of the sentencing documents in CF91-398 to reflect fifteen years of credit for prior prison time served in case number CF91-2133 against the total fifteen-year sentence imposed in CF91-398. See Hodgdon v. State, 789 So.2d 958 (Fla. 2001).

We find no merit to the other issues raised by Freeman-Jew.

Reversed and remanded.

FULMER, DAVIS, and KELLY, JJ., Concur

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