FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2022-0609

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DONSHAY M. BROWN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Leon County.

J. Lee Marsh, Judge.

March 6, 2024

PER CURIAM.

Appellant, Donshay M. Brown, appeals the revocation of his 

probation and argues in part that the trial court erred in not 

awarding him the correct amount of credit for time served on the 

three consecutive sentences that were imposed following the 

revocation. We affirm the revocation of Appellant’s probation 

without further comment. We agree, however, with Appellant that 

the trial court erred in not giving him credit on each of the 

consecutive sentences for the previous 100-day concurrent 

sentences that he served when his probation was modified in 2019. 

See Kimble v. State, 110 So. 3d 469, 469 (Fla. 1st DCA 2013) 

(“[B]ecause the appellant’s sentences were originally all running 

concurrently to each other, the appellant was entitled to credit on 

each count for the time he spent in jail or prison after the original 
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sentence was imposed but before he was resentenced to 

consecutive terms.”); Nichols v. State, 32 So. 3d 718, 718 (Fla. 1st 

DCA 2010) (“The appellant challenges the sentences entered upon 

his revocation of probation. The state correctly concedes that, 

because his original sentences were concurrent, the appellant is 

entitled to credit for time served on each of the consecutive 

sentences to which he was resentenced.”). 

Accordingly, we affirm the revocation of Appellant’s probation

but vacate the sentencing order and remand with directions that 

the trial court give Appellant credit for 100 days on each of his 

consecutive sentences. 

AFFIRMED in part, VACATED in part, and REMANDED with 

directions. 

LEWIS and NORDBY, JJ., concur; TANENBAUM, J., concurs with 

opinion.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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TANENBAUM, J., concurring.

One of the issues on appeal is whether the sentencing order 

on the appellant’s revocation of probation accurately awards him 

credit for previous time served on his underlying convictions. 

Originally, the appellant had been convicted of three counts of 

willful child abuse, so three third-degree felonies. See

§ 827.03(2)(c), Fla. Stat. For those convictions, he received 

concurrent 18-month sentences, with 24 months of probation to 

follow. After he served the original 18-month sentences and went 

on probation, the appellant violated. The trial court sentenced him 

to an additional 100 days of incarceration on all three counts and 

reinstated the appellant on probation. The trial court ran the three 

100-day sentences concurrently as time the appellant had already 

served in jail on the arrest for the violation of probation.
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Not long after being reinstated, the appellant was charged 

with a new law violation, and also with violating his probation on 

all three counts based on that new law violation. The appellant 

agreed to have the trial on his new criminal charge serve as the 

evidentiary hearing for the probation violation charges. After 

hearing the evidence presented at the trial and the testimony of 

the probation officer in a separate hearing, the trial court 

concluded that the appellant had violated his probation, revoked 

it, and sentenced the appellant to the maximum term for each of 

the child-abuse counts—five years. The trial court specified that 

these three five-year sentences were to run consecutively.

The trial court at first ordered that the Department of 

Corrections give him credit for prior, concurrent prison sentences 

served on the child-abuse counts, under section 921.0017, Florida 

Statutes. It also ordered a credit of 782 days for time served in jail 

since the last arrest for the probation violation. See § 921.0017, 

Fla. Stat. (“The court shall determine the amount of jail-time 

credit to be awarded for time served between the date of arrest as 

a violator and the date of recommitment, and shall direct the 

Department of Corrections to compute and apply credit for all 

other time served previously on the prior sentence for the offense 

for which the offender is being recommitted.”). The trial court 

failed to order credit for the 100 days that the appellant had served 

concurrently on all three counts on the prior probation violation.

After this appeal was taken, counsel sought to correct the 

appellant’s sentence by filing a motion under Florida Rule of 

Criminal Procedure 3.800(b)(2). Counsel indicated in the motion,

in a footnote, that the appellant “concedes that he is entitled to the 

782 days of credit since last arrest only on count I.” (emphasis 

supplied). Still, counsel argued, among other things, that the trial 

court should have given credit for the 100 days previously served 

in jail because the department would not otherwise know about 

that jail sentence when calculating the appellant’s end-of-sentence 

date. The State agreed that the appellant should get that credit.

When the trial court amended the sentence, however, it 

indicated that the appellant gets credit for 882 days (the 782 days 

since the last arrest plus the 100 days for the prior sentence)—but 

specified now that the credit would only be “as to count I.” Because 
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the new sentences on the child-abuse conviction now were to run 

consecutively, the trial court correctly amended the sentencing 

order to make clear that the 782 days of jail time since the last 

arrest applied only to one of the five-year terms. The trial court 

erred, though, when it did not apply the previous 100-day 

concurrent sentences to all three of the new sentences. Because of 

the error, the consecutive sentences imposed on counts two and 

three are illegal. Without the credit for the 100 days that the 

appellant served as a prior sentence on those latter two counts, the 

five-year sentences imposed for those counts—when the 

uncredited 100 days are added on top—effectively exceed the 

statutory maximum for each count.

The disposition here is required so that legal sentences may 

be imposed. Cf. § 921.0017, Fla. Stat.; State v. Rabedeau, 2 So. 3d 

191, 193 (Fla. 2009) (approving holding “that [the defendant] was 

entitled to credit for time served on his concurrent sentences in 

each of the three cases for which consecutive sentences were 

subsequently imposed after he violated probation” because “by 

imposing sentences to be served concurrently, a trial court is 

permitting a defendant to serve multiple sentences at the same 

time”).

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Jessica J. Yeary, Public Defender, and Pamela D. Presnell, 

Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Virginia Chester Harris, 

Assistant Attorney General, Tallahassee, for Appellee.