      Third District Court of Appeal
                               State of Florida

                           Opinion filed March 9, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-2134
                          Lower Tribunal No. 02-4050



                        Nelson Vladimir Gonzalez,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from
the Circuit Court for Miami-Dade County, Victoria R. Brennan, Judge.

      Nelson Vladimir Gonzalez, in proper person.

     Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney
General, for appellee.


Before SHEPHERD, EMAS and LOGUE, JJ.

      EMAS, J.
      Nelson Vladimir Gonzalez seeks review of the trial court’s denial of his

motion to correct sentence. We hold that the trial court erred in not properly

awarding Gonzalez the credit for prison time he previously served on his

probationary split sentence. Further, given the clear and unequivocal intent of the

trial court, as articulated in the sentencing hearing below, we reverse and remand

so that the trial court may restructure the sentence to reflect the trial court’s

articulated sentencing goal, while properly awarding the prison credit to which

Gonzalez is entitled.

      The salient facts are not in dispute. In May 2004, Gonzalez entered into a

negotiated plea, and received a probationary split sentence of ten years’

imprisonment, followed by ten years of probation. In August 2010, Gonzalez was

released from the incarcerative portion of his sentence, and began serving his

probation. Gonzalez thereafter violated his probation and, following a probation

violation hearing, the trial court revoked his probation and sentenced him to fifteen

years in prison.   In imposing this sentence, the trial court awarded credit of

approximately seven months from December 4, 2012 (the date he was taken into

custody on the probation violation) until June 25, 2013 (the date of the sentencing).

Had the court awarded Gonzalez all credit due (i.e., the approximately seven

months described above plus the six years and three months he previously served

in prison), Gonzalez would have been credited approximately six years and ten



                                         2
months against his fifteen-year sentence (resulting in a “net” sentence of

approximately eight years and two months).

      As the State properly concedes, the failure of the trial court to award all of

the prior prison credit was error. Gonzalez was entitled to receive credit not only

for the time he spent in the county jail awaiting his probation violation hearing, but

was entitled to credit for the time he previously spent in prison on his probationary

split sentence:

      A defendant sentenced to a probationary split sentence who violates
      probation and is resentenced to prison is entitled to credit for all time
      actually served in prison prior to his release on probation unless such
      credit is waived. The defendant is entitled to such credit even when it
      results in a “windfall” requiring immediate release.

Dortly v. State, 107 So. 3d 1229, 1230 (Fla. 1st DCA 2013) (internal citations

omitted). See also Sainvilus v. State, 689 So. 2d 1261, 1261-62 (Fla. 3d DCA

1997) (holding that “[a] prisoner who is sentenced to prison for violating probation

is entitled to credit for time actually served in prison, prior to commencement of

the probationary term”).

      The trial court should properly have awarded Gonzalez a total credit of

approximately six years and ten months. Nevertheless, the State urges that the

circumstances of this case, clearly and unequivocally established by the record

below, militate against merely reversing and remanding with directions to award

Gonzalez the additional credit and that we should instead remand to direct the trial



                                          3
court to award the proper credit while permitting the trial court to restructure the

sentence to carry out its expressly articulated sentencing goal. Based upon our

review of the record below and the case law in our district, we agree.

      Our conclusion is controlled by this court’s decision in Toombs v. State, 404

So. 2d 766 (Fla. 3d DCA 1981). In Toombs, as here, the defendant entered a plea

and was sentenced to a prison term to be followed by probation. He served three

years in prison and upon his release, violated his probation.            Following a

revocation hearing, Toombs was found in violation and sentenced to a year and a

day, but the court did not award any credit for the prison time Toombs had

previously served. Although we held that as a matter of law Toombs was entitled

to credit for the three years he had previously served, it did not mean (as Toombs

argued) that he was therefore entitled to release given the court’s sentence of a year

and a day in prison. Instead, we observed:

      It is clear from the transcript of sentencing that when the trial court
      imposed this sentence upon Toombs, it was aware that Toombs had
      served three years in prison and fully intended that Toombs serve an
      additional year for having violated his probation. . . . It is apparent
      that had the trial court imposed a four-year prison sentence on
      Toombs (who could have been sentenced, under the original offense
      charged, to up to fifteen years in prison when his probation was
      revoked) and credited Toombs with the three years served, it would
      have accomplished its sentencing goal. Since it was so clearly the
      trial court’s intent that Toombs serve an additional year in prison, and
      since the trial court was empowered to impose a sentence of sufficient
      length after crediting the time served to carry out that intent, . . . we
      reject Toombs’ argument that the trial court’s technical error results in
      setting Toombs free.


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      Id. at 768.

      In Toombs, we reversed the sentence and remanded the case to the trial court

to award the proper amount of credit for time previously served by Toombs, and to

permit the trial court to impose a restructured sentence consistent with the trial

court’s clearly and unequivocally articulated original sentencing goal. See also

Mathis v. State, 649 So. 2d 279 (Fla. 3d DCA 1995) (reversing sentence that did

not properly award credit for time served but remanding to award proper credit and

to permit trial court to restructure sentence to carry out the trial court’s clear

sentencing intent).1

      Gonzalez contends that Toombs does not apply because the proper award of

credit in this case will not result in Gonzalez’s immediate release. We disagree.

While it surely may be easier to conclude that a trial court’s clear sentencing goal

cannot be met where a proper award of credit results in a defendant’s immediate

release, such circumstances are but a factor in the analysis. At bottom, the focus of

the analysis is on whether the record clearly and unequivocally establishes the trial

court’s articulated sentencing goal and whether that goal is undermined by a

reversal and remand for the sole purpose of awarding proper credit for time

previously served. Where the record clearly and unequivocally establishes the trial

1We recognize that the Fourth District, in Pendergrass v. State, 487 So. 2d 35 (Fla.
4th DCA 1986), declined to follow the reasoning of our decision in Toombs. We
certify express and direct conflict with Pendergrass.

                                         5
court’s articulated sentencing goal and further establishes that this goal would be

undermined by a reversal and remand for the sole purpose of awarding proper

credit for time previously served, we hold, consistent with Toombs, that the proper

remedy is to reverse the sentence and remand with directions that the court

properly award the credit while permitting the trial court the opportunity to

restructure the sentence to achieve its clear and unequivocal sentencing goal as

articulated at the original sentencing.

      An objective review of the sentencing transcript leaves no reasonable doubt

about the court’s intent in sentencing the defendant. At the commencement of the

sentencing hearing, the trial court asked the State what Gonzalez’s minimum

sentence was under the guidelines. The State advised the bottom of the guidelines

was 25.375 years.2 The court inquired if the State had made a plea offer to

Gonzalez prior to the probation violation hearing, and the State acknowledged it

had. The following transpired:

      COURT:        And you offered what [plea prior to the probation violation
                    hearing]?
      STATE:        I offered six years to revoke everything.


2 As indicated earlier, however, the 2004 negotiated plea was to a below-guidelines
sentence of ten years in prison followed by ten years of probation. The minimum
sentence under the guidelines was approximately twenty-four years. The State
indicated that the difference between the two guidelines’ calculations (twenty-four
years in 2004 and 25.375 in 2013) is the result of additional points for Gonzalez’s
violation of probation.

                                          6
      COURT:       With credit for time served so he gets right back out?
      STATE:       No, I believe that I had spoken with . . . defense counsel about
                   [credit time served] from the last booking date, and the last
                   booking date that I had written down and articulated was---
      COURT:       12/4 of ’12.
      STATE:       Yes.

      The court then asked if the State had a sentencing recommendation now that

Gonzalez had been found in violation of his probation. The State advised the court

that it believed (even after the probation violation hearing) that a sentence of

between seven and eight years was appropriate.         It is clear from the State’s

sentencing position that it was recommending a “net” sentence of between seven

and eight years, akin to the earlier net sentence of six years it offered to Gonzalez

prior to the probation violation hearing (i.e., a sentence which included credit only

from the last booking date of December 4, 2012). It is plainly evident the State

was not recommending a sentence of seven to eight years with all credit for time

served, (i.e., approximately six years and ten months) which would have reduced

the State’s recommended sentence (of between seven and eight years) to a net

sentence of between two and fourteen months. More importantly, and as the

discussion below evidences, the trial court understood the State to be

recommending a net sentence of seven to eight years, a recommendation which the

trial court rejected in unmistakable terms.



                                          7
      After the State set out its position of a net sentence of seven to eight years,

the court and State engaged in a further colloquy about this recommendation. The

court then heard from Gonzalez’s counsel and from Gonzalez himself. Following

this, the court explained its decision and announced its sentence:

      COURT:       Okay. Thank you, sir [Mr. Gonzalez]. You were—
                   remain standing. You were given a tremendous chance when
                   this crime was committed and what you did do back then
                   remains relevant today because of the choice you made. You
                   chose not to run the risk of going to prison for at least 25 years
                   by taking the plea that called for you to serve ten years in prison
                   followed by ten years of probation. That was a choice you
                   made. You took the easier softer way, you didn’t want to run
                   the risk. The facts of your case demonstrate a very serious and
                   egregious series of actions where you just didn’t endanger your
                   friend who because of you was killed, you endangered
                   everybody on that road that night, all those police officers, all
                   the people driving on the road. You led them on a high speed
                   chase the wrong way up ramps that people were supposed to
                   drive down, they threw things in the road to stop you, nothing
                   was going to stop you, and that’s why when you were charged
                   with these crimes you faced at least 25 years in prison.

                                              ***

                   I’m not going to give you 25 years, but I’m not going to give
                   you 7, I’m going to give you 15 years in state prison. And you
                   need to understand that the reason you’re getting that is not
                   because people are mean, it’s not because life is unfair, it’s
                   because you made decisions. And you need to think a little
                   harder about how much further you have to go to really have
                   been a changed man.



                                          8
                    Probation is revoked, 15 years in state prison, credit from time
                    served 12/4 of 2012.

      In context, and given the nature and substance of the discussions during the

sentencing hearing, we conclude that the trial court articulated its clear and

unequivocal intent that Gonzalez receive a net sentence of fourteen years and five

months (i.e., fifteen years less the approximate seven months spent in jail awaiting

his probation violation hearing and sentencing), and plainly rejected the State’s

earlier recommendation of a net sentence of seven to eight years. If we were to

reverse and remand solely for the trial court to award the proper credit for time

served against the fifteen-year sentence (i.e., six years and ten months), the net

sentence would approximate the very sentence recommended by the State and

rejected by the trial court.

      It is clear and unequivocal from the record that the trial court intended

Gonzalez to serve a net sentence of fourteen years and five months. Such a

sentence is lawful, as the court could have sentenced him (at the bottom of the

guidelines) to twenty-five years which, even with an award of all proper credit for

time served, would have resulted in a net sentence of approximately eighteen years

and two months. However, the manner in which the court attempted to effectuate

this net sentence was not lawful, as the sentence failed to include the prior prison

credit to which Gonzalez was entitled. Under these circumstances, reversal is




                                         9
required but, consistent with our decision in Toombs, the cause is remanded for the

trial court to restructure the sentence in such a way as to impose a lawful sentence

consistent with the trial court’s clear and unequivocally articulated original

sentencing goal, while awarding Gonzalez all of the credit for time served to which

he is legally entitled.

       Reversed and remanded with instructions. Conflict certified.




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