ROGER DALE GORDON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant's sentences for drug delivery were departure sentences lacking written reasons for departure, requiring vacation and remand for resentencing under Hankey v. State.
A sentence imposing community control as part of a drug delivery sentence constitutes a departure sentence requiring written reasons in the record.
[1] A sentence imposing community control as part of a drug delivery sentence constitutes a departure sentence requiring written reasons for departure in the record.
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Join FLexlaw to unlock all legal intelligenceGordon pleaded guilty to two counts of cocaine delivery and one count of cannabis possession, receiving thirty months incarceration plus twenty-four m…
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UPCHURCH, Chief Judge.
Gordon pleaded guilty to two charges of delivery of cocaine and one charge of possession of cannabis. He was sentenced to thirty months incarceration followed by twenty-four months community control on the two delivery charges, to be served concurrently. He was also sentenced to serve one hundred seven days incarceration with credit for the same amount of time on the possession charge. On appeal, Gordon argues that that his sentences on the delivery charges were departure sentences and since no written reasons for departure appear in the record, the community control portion of the sentences should be stricken. Gordon candidly acknowledges that this argument has been rejected in Francis v. State, 487 So. 2d 348 (Fla. 2d DCA 1986).
More recently, however, this court held that a sentence such as the one involved here is a departure sentence and, if no written reasons for departure appear in the record, the sentence must be vacated. See Hankey v. State, 505 So. 2d 701 (Fla. 5th DCA 1987). In the present case, no written reasons for departure appear in the record and accordingly Gordon’s sentences must be vacated and the cause remanded for resentencing.
JUDGMENT AFFIRMED; SENTENCES VACATED AND REMANDED.
DAUKSCH and COWART, JJ., concur.
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Sanders v. State, 516 So. 2d 38 (Fla. 1st DCA 1987)…l or twelve to thirty months’ incarceration, the trial judge is not at liberty to impose a combination of those two sanctions. Johnson v. State, 511 So. 2d 748 (Fla. 5th DCA 1987); Avera v. State, 512 So. 2d 215 (Fla. 5th DCA 1987); Gordon v. State, 511 So. 2d 745 (Fla. 5th DCA 1987); and Vankooten v. State, 512 So. 2d 214 (Fla. 5th DCA 1987). Recognizing conflict with the Fifth District in this regard, we disagree with the position of that court that community control and incarceration cannot be imposed in t…
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State v. Gordon, 522 So. 2d 824 (Fla. 1988)…[*825] OVERTON, Justice. In accordance with our decision in State v. Van Kooten (Fla.1988), we approve the decision of the Fifth District Court of Appeal in Gordon v. State, 511 So. 2d 745 (Fla. 5th DCA 1987).* It is so ordered. McDonald, C.J., and EHRLICH, SHAW, BARKETT and KOGAN, JJ., concur. * We have jurisdiction based on conflict with Francis v. State, 487 So. 2d 348 (Fla. 2d DCA 1986). Art. V, § 3(b)(3), Fla.Const.…
Authorities Cited
- Francis v. State, 487 So. 2d 348 (Fla. 2d DCA 1986)
- Hankey v. State, 505 So. 2d 701 (Fla. 5th DCA 1987)