THOMAS RAYMOND HANKEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a sentence departing upward from the presumptive guidelines sentence must be accompanied by written reasons for the departure.
Hankey was convicted of burglary and sentenced to incarceration followed by community control and probation. The presumptive guideline sentence for hi…
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SHARP, Judge.
Hankey was resentenced to thirty months incarceration, followed by two years community control, followed by five years probation. He had been convicted of burglary of a dwelling1 and burglary of a structure.2 The presumptive guideline sentence based on Hankey’s 48 point count was “community control or 12 to 30 months incarceration,” the second bracket of the category 5 scoresheet. Because no written reasons for a departure sentence were given, we vacate the sentence.
In this particular bracket it is clear that the presumptive sentence could only be either community control or 12 to 30 months incarceration. If incarceration was imposed, there could be no community control, based on the language of the guidelines. Similarly, the court could not have imposed incarceration time if it elected community control.
Accordingly, Hankey’s sentence departed upward from the guidelines presumptive sentence. Since the trial judge failed to give any written reasons for aggravating Hankey’s punishment, we must vacate the sentence and remand for resentencing. State v. Jackson, 478 So. 2d 1054 (Fla.1985).
VACATE SENTENCE; REMAND.
UPCHURCH, C.J., and COWART, J., concur. . § 810.02(3), Fla.Stat. (1983).
. § 810.02(1), FIa.Stat. (1983).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (26 total)
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State v. VanKOOTEN, 522 So. 2d 830 (Fla. 1988)…directs community con [*831] trol or incarceration, the imposition of both represents a departure from the sentencing guidelines, requiring proper written reasons for the departure. In so holding, the court relied on its decision in Hankey v. State, 505 So. 2d 701 (Fla. 5th DCA 1987), and certified conflict with the Second District Court of Appeal’s decision in Francis v. State, 487 So. 2d 348 (Fla. 2d DCA 1986). We have jurisdiction, article V, section 3(b)(4), Florida Constitution, and approve VanKooten and…
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Keidrick Ewing v. State, 526 So. 2d 1029 (Fla. 1st DCA 1988)…trol and incarceration. The Court rejected the latter decision that “the use of the word ‘or’ in this cell ... was designed to permit the imposition of either or both sanctions.” 487 So. 2d at 349. The opinions in Van Kooten, and in Hankey v. State, 505 So. 2d 701 (Fla. 5th DCA 1987), also approved by the Court, involved sentences combining community control and incarceration for a total period exceeding the maximum guidelines incarceration period.1 Those opinions did not address the issue raised in this case…
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Avera v. State, 512 So. 2d 215 (Fla. 5th DCA 1987)…DAUKSCH, Judge. This is an appeal from a sentence which imposes both community control and imprisonment in contravention of Hankey v. State, 505 So. 2d 701 (Fla. 5th DCA 1987). SENTENCE VACATED; REMANDED. ORFINGER and SHARP, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)