JOHN PATRICK KELLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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DELL, Judge.
We grant the Public Defender’s motion to withdraw, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and affirm appellant’s convictions. We note that the trial court departed from the presumptive sentence when it imposed a two year sentence based on the violation of probation and failed to provide written reasons for the departure. Although Florida Rule of Criminal Procedure 3.701 was amended to provide that no reason need be given for increasing the presumptive sentence under the guidelines to the next higher cell by reason of revocation of probation, the amendment was not adopted until after appellant’s sentencing. See Carter v. State, 452 So. 2d 953, 954 n.3 (Fla. 5th DCA 1984). Because this issue was not adequately preserved for appellate review, we affirm appellant’s convictions and sentences. However, we do so without prejudice to appellant to challenge the sentence imposed by the trial court based on the revocation of probation pursuant to a mo-ti°n in compliance with Florida Rule of Criminal Procedure 3.850.
HURLEY and BARKETT, JJ., concur.
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Citator
Cited By
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O'Malley v. State, 462 So. 2d 868 (Fla. 4th DCA 1985)…entencing took place on March 5, 1984. We hold that appellant’s contention has merit. Recently approved changes in the sentencing guidelines have no retroactive effect. Dorman v. State, 457 So. 2d 503 (Fla. 1st DCA 1984); see also Kelly, v. State, 461 So. 2d 192 (Fla. 4th DCA 1984). Furthermore, the court’s record explanation of why he was deviating from the guidelines (assuming that he was) is inadequate under the rule to demonstrate clear and convincing reasons therefor. Fla.R.Crim.P. 3.701 (d)(ll). Acc…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984)