          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D18-1426
                  _____________________________

MICHAEL JOHN TRIATIK,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Escambia County.
John L. Miller, Judge.

                          March 28, 2019


OSTERHAUS, J.,

     Michael Triatik argues that he is entitled to receive credit for
time spent in county jail against all nine counts of his sentence,
instead of against count 1 only. We disagree that jail credit must
be given against all of the counts because he was sentenced with
consecutive sentences. But we agree that credit should have been
applied to the four misdemeanor counts because his jail credit time
plus probation-served time exceeded the statutory maximum for
these counts already by the time the court revoked his probation
and sentenced him to consecutive sentences.

                                 I.

     In May 2017, Michael Triatik pled no-contest to nine charges,
including extortion, felony failure to appear, two counts of
tampering with evidence, grand theft, and four counts of
distribution of obscene material. The trial court withheld the
imposition of a sentence and ordered Mr. Triatik to serve 24
months community control followed by 36 months probation for
counts 1-5, running concurrently. For misdemeanor counts 6-9, the
court ordered 12 months of probation for each count, concurrent
with each other and with count 1. Mr. Triatik had spent 258 days
in jail prior to the trial court’s order imposing community control
and probation.

     About six months after this disposition, the State filed an
affidavit of violation. Mr. Triatik had been arrested on 25 new
criminal charges and was found in violation of his probation. The
trial court then sentenced him to prison with consecutive
sentences on the first five original counts—15 years incarceration
for count 1; 5 years incarceration each for counts 2-5—as well as to
364 days in jail each for counts 6-9, concurrent with each other and
with count 5. The court awarded him jail credit for the 258 days
only against count 1, and he appealed.

     While Mr. Triatik’s appeal was pending, he filed a Rule
3.800(b)(2) motion contending, in part, that he was entitled to
additional jail credit, including 258 days on counts 2-9 of his
sentence because the court had originally ordered concurrent
terms of community control and probation on the counts. He also
argued that the court was without jurisdiction over counts 6-9
because the 1-year probation period had run before the affidavit of
violation was filed. The trial court rejected both of these
arguments.

                                 II.

    Mr. Triatik’s appeal of the motion to correct sentencing error
involves purely legal issues which appellate courts review de novo.
Daffin v. State, 31 So. 3d 867, 870 (Fla. 1st DCA 2010).

                                 A.

      Mr. Triatik argues that he is entitled to have his original 258
jail credit days applied beyond count 1, to all of the counts, because
the trial court originally imposed his community control and


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probationary conditions “concurrently” on all the counts. We do
not agree with his argument. We recognize that

    [a] defendant is entitled to an award of credit for all time
    spent in the county jail prior to sentencing in a violation
    case, which includes all time spent in the county jail
    prior to the original sentencing plus all time spent in the
    county jail prior to any subsequent violation
    sentencings.

McCool v. State, 211 So. 3d 304, 305 (Fla. 1st DCA 2017) (quoting
Jenkins v. State, 749 So. 2d 527, 528 (Fla. 1st DCA 1999)). And it
is also true that when concurrent sentences are imposed, a
defendant is awarded jail credit on all counts. State v. Rabedeau,
2 So. 3d 191 (Fla. 2009).

      But in this case, the only sentences imposed by the trial court
were consecutive sentences. When consecutive sentences are
imposed, “the defendant ‘is not entitled to have his jail time credit
pyramided by being given credit on each sentence for the full time
he spends in jail awaiting disposition.’” Daniels v. State, 491 So. 2d
543, 545 (Fla. 1986) (citation omitted). “[A] defendant who is
convicted of multiple offenses and sentenced to consecutive terms
of imprisonment must be given presentence jail credit only on the
first of the consecutive sentences.” Canete v. Fla. Dep’t of Corr., 967
So. 2d 412, 415-16 (Fla. 1st DCA 2007). The trial court correctly
followed the law here. Because Mr. Triatik was sentenced with
consecutive sentences, and not concurrent ones, the trial court
could lawfully apply his 258-day jail credit against count 1 only.

      We understand Mr. Triatik’s argument that the trial court
locked itself into applying his jail credit across all the counts after
it initially ordered him to serve community control and probation
“concurrently.” But the court’s initial disposition didn’t have this
effect (except for the misdemeanor counts for the reason discussed
below in B.). The rule from Rabedeau was that when incarcerative
sentences have been imposed and served concurrently, and then
subsequently changed to consecutive (after a probation violation),
the defendant was entitled to have his jail credit applied on each
of the concurrent sentences. 2 So. 3d at 193-94.



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     In this case, however, the order of community control and
probation did not impose an incarcerative sentence, or any
“sentence,” implicating Mr. Triatik’s jail credits. The trial court’s
community control and probation order withheld sentence and did
not constitute a sentence. See, e.g., Mack v. State, 823 So. 2d 746,
750 (Fla. 2002) (“probation is technically not a sentence”); State v.
Summers, 642 So. 2d 742, 744 (Fla. 1994) (“A probationary period
is not a sentence.”); Landeverde v. State, 769 So. 2d 457, 462 (Fla.
4th DCA 2000) (discussing why, under Florida law, placing a
defendant on probation and community supervision are generally
not considered a “sentence”). The trial court ordered community
control and probation in lieu of sentencing as a matter of its
discretion and grace in accordance with what “the ends of justice
and the welfare of society” appeared to require. § 948.01(2), Fla.
Stat. (allowing a court to withhold sentencing and impose
probation if it thinks a defendant is unlikely again to engage in
criminal conduct). In the absence of a sentence, there was no
requirement seven months later, when Mr. Triatik was actually
sentenced, to offset his jail credit across all of the counts. At that
point, the trial court was free to impose any sentence which it
might have originally imposed, see § 948.06(2)(e), including
imposing consecutive sentences with the application of jail credit
limited to count 1. Only at sentencing did the trial court have to
calculate and decide how his creditable jail time would be applied.
Barnishin v. State, 927 So. 2d 68, 71 (Fla. 1st DCA 2006) (noting
that “[n]ot until acquittal or initial sentencing does antecedent
time in jail lose its protean character”).

      Thus, we see no error in the trial court’s decision not to credit
jail time against counts 2-5.

                                  B.

     For Mr. Triatik’s misdemeanor offenses (counts 6-9), however,
the facts of this case required the trial court to apply the 258 days
of jail credit in order to keep the punishment from exceeding
statutory maximums. Before his probation revocation and
sentencing, Mr. Triatik had already satisfied the one-year
maximum sentence for his misdemeanor offenses, counting the jail
credit time plus the probation time which the court had ordered to
be served concurrently. And so, the trial court no longer possessed

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jurisdiction to revoke probation and impose jail time on these
counts by the time the affidavit of violation was filed.

      When a trial court imposes probation, it must credit jail time
against the probationary term if the combined time would exceed
the statutory maximum sentence. See Grissinger v. State, 905 So.
2d 982 (Fla. 4th DCA 2005); Baldwin v. State, 558 So. 2d 173 (Fla.
5th DCA 1990). Here, the statutory maximum for counts 6-9 was
one year. In May 2017, the court ordered concurrent one-year
probationary terms for counts 6-9, before which Mr. Triatik had
already spent 258 days in jail awaiting disposition. Seven months
later, in December 2017, by the time the State filed the affidavit of
violation, Mr. Triatik had served seven months of probation plus
served 258 jail days. This combination of incarceration and
probation time—all served before the probation revocation—
exceeded the one-year statutory maximums applicable to counts 6-
9. Thus, no probationary “balance” remained when the sentencing
court revoked Mr. Triatik’s probation and sentenced him to 364
days in jail. He had already served the maximum penalty for these
counts and the court’s jurisdiction to revoke his probation had been
lost. See Aponte v. State, 896 So. 2d 836, 838 (Fla. 1st DCA 2005)
(citing Mundorff v. State, 890 So. 2d 1234 (Fla. 1st DCA 2005)
(“Because appellant’s probation expired prior to his being charged
with violating the terms and conditions thereof, the trial court no
longer had jurisdiction to conduct a revocation hearing.”)). For this
reason, we reverse the judgment and sentences imposed as to
counts 6-9, and remand for them to be stricken.

                                III.

    For the foregoing reasons, we AFFIRM in part and REVERSE in
part the judgment and sentence, and REMAND for additional
proceedings consistent with this opinion.

ROWE and RAY, JJ., concur.




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                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and Joel Arnold, Assistant Public
Defender, Tallahassee, for Appellant.

Ashley B. Moody, Attorney General, and Barbara Debelius,
Assistant Attorney General, Tallahassee, for Appellee.




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