TIMOTHY LEE JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Timothy Lee Johnson appealed his sentence for aggravated assault, arguing that the trial court improperly imposed both incarceration and community control without departing from sentencing guidelines. The Florida appellate court reversed, holding that community control and probation are not interchangeable under the guidelines, and remanded for resentencing.
The court held that community control and probation are not interchangeable under the sentencing guidelines. The trial court could impose either community control (up to 2 years) or incarceration with probation (30 months incarceration plus up to 30 months probation) without departure, but not both incarceration and community control as imposed.
[1] A trial court may not impose both incarceration and community control as part of a presumptive sentence under the guidelines without providing written reasons for departu…
[2] Under the guidelines, community control is a viable alternative for state prison sentences less than twenty-four months, but it cannot be substituted for probation.
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Establishes the permissible sentencing options under the guidelines without requiring departure reasons.
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Join FLexlaw to unlock all legal intelligenceJohnson was adjudicated guilty of aggravated assault and sentenced pursuant to sentencing guidelines. His guideline score placed him in the second cel…
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COBB, Judge.
Appellant’s Motion for Rehearing is granted, the prior opinion of this court issued on July 2, 1987, is hereby vacated and the following opinion is issued in its place.
After being adjudicated guilty of aggravated assault, Johnson was sentenced pursuant to the guidelines. Johnson’s score placed his presumptive sentence within the second cell which reads “community control or twelve-thirty mos. incarceration.” The trial court imposed a sentence of thirty months’ incarceration, followed by two years of community control and six months’ probation, for a total sentence of five years. Johnson appeals his sentence, contending that by imposing both incarceration and community control the trial court departed from the guidelines without providing valid written reasons.
Johnson could have been sentenced to a maximum of either thirty months’ incarceration or two years’ community control (see Fla.R.Cr.P. 3.701(d)(13))1 without departure from the guidelines. Therefore, we reverse for imposition of either community control (two years or less) or incarceration and probation (30 months’ incarceration and a maximum of 30 months’ probation), or for the exposition of written reasons for departure therefrom by the trial court.
Contrary to Francis v. State, 487 So. 2d 348 (Fla. 2d DCA), review denied, 492 So. 2d 1332 (Fla.1986), cited by the state, we find no authority for the imposition of community control as an alternative to probation in a split sentence under the guidelines. See committee note to Fla.R.Cr.P. 3.701(d)(12). See also State v. Mestas, 507 So. 2d 587 (Fla.1987), for the proposition that probation and community control are not interchangeable under the guidelines.
Accordingly, we reverse the sentence imposed below and remand for resentencing.
REVERSED and REMANDED.
UPCHURCH, C.J., and DAUKSCH, J., concur. . Said rule provides:
13. Community control is a form of intensive supervised custody in the community involving restriction of the freedom of the offender. When community control is imposed, it shall not exceed the term provided by general law.
The committee note attempting to explain section (d)(13) states that "[c]ommunity control is a viable alternative for any state prison sentence less than twenty-four (24) months without requiring a reason for departure.” This apparently refers to downward departure, and supports the concept that whereas community control may, in some instances, be substituted for incarceration, it cannot be substituted for probation. See State v. Mestas, infra. See also § 948.01(5), Fla.Stat. (1985).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Mestas, 507 So. 2d 587 (Fla. 1987)
- Francis v. State, 487 So. 2d 348 (Fla. 2d DCA 1986)