       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                       LAWRENCE LEE VINSON,
                            Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D14-283

                            [March 30, 2016]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert E. Belanger, Judge; L.T. Case No. 562009CF04110A.

   Lawrence Vinson, Carrabelle, pro se.

  Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney,
Senior Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

   Lawrence Vinson (“Defendant”) appeals from the revocation of his
probation and the resulting judgment and sentence in his underlying
criminal case. Defendant presents the following arguments on appeal: (1)
the court erred in finding that he willfully and substantially violated the
conditions of probation; (2) the court erred in resentencing him without
awarding the appropriate credit for time served; and (3) Defendant was
denied effective assistance of counsel at the revocation hearing. We affirm
the revocation order without further comment but remand for the trial
court to correct sentencing.

   In December of 2009, Defendant was charged with lewd or lascivious
conduct on a person under the age of sixteen (“Count 1”), battery by
strangulation (“Count 2”), and child abuse (“Count 3”). After the State
agreed to nolle prosse Count 1, Defendant pled no contest to Counts 2 and
3. On both counts, Defendant was sentenced to concurrent terms of
thirty-seven months in prison followed by twenty-three months of
probation. After his release from prison, Defendant violated probation and
the court resentenced him on the underlying charges. On Counts 2 and
3, the trial court sentenced Defendant to consecutive five-year prison
sentences. On Count 2, the court gave Defendant credit for time served
on his pre-violation concurrent sentences. The court, however, gave no
such credit on Count 3.

   During the pendency of this appeal, Defendant filed a motion to correct
sentencing error arguing that the court erred in not giving him credit for
time served on Count 3. The court failed to rule on Defendant’s motion
within sixty days, thereby causing the motion to be considered denied for
appellate review purposes. See Fla. R. Crim. P. 3.800(b)(2)(B); Delacruz v.
State, 180 So. 3d 227, 228 (Fla. 4th DCA 2015).

    On appeal, Defendant argues that in resentencing him to two five-year
consecutive sentences, the court was required to award him the jail and
prison credit on both counts because he served the pre-violation sentences
for Counts 2 and 3 concurrently. The State concedes error, and we agree.

   In State v. Rabedeau, 2 So. 3d 191, 228-29 (Fla. 2009), the supreme
court addressed the issue of entitlement to credit for time served on prior
concurrent sentences:

      When a criminal defendant is sentenced after being convicted
      of a crime and serves some portion of that sentence, he or
      she is entitled to receive credit for the actual service of that
      sentence, or any portion thereof, in a resentencing for the
      same crime. Likewise, if multiple convictions result in
      concurrent sentences, credit must be awarded for time
      served on each sentence in any resentencing for the
      multiple convictions. The word “concurrently” simply
      means “at the same time,” and by imposing sentences to be
      served concurrently, a trial court is permitting a defendant
      to serve multiple sentences at the same time.

(emphasis added).

   Here, in imposing pre-violation concurrent sentences, the trial court
permitted Defendant to serve multiple sentences at the same time.
Therefore, Defendant “was entitled to credit for time served arising from
each of his pre-violation concurrent sentences, including on [Count 3],
regardless of the fact that the court, post-violation, imposed consecutive
sentences on” Counts 2 and 3. Delacruz, 180 So. 3d at 227.

   We accordingly reverse the court’s denial of Defendant’s motion to
correct sentencing error and remand with instructions that the court
award Defendant the appropriate credit for time served on Count 3. As to

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Defendant’s ineffective assistance of counsel argument, we hold that it is
not apparent on the face of the record that Defendant’s counsel was
deficient. In reaching this conclusion, however, we are not commenting
on the merits of such a claim.

   Affirmed in part, reversed in part, and remanded for correction of
sentence on Count 3.

MAY and GERBER, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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