DONALD D. FILMORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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DAUKSCH, Judge.
Upon consideration of the Motion for Rehearing, we withdraw the prior decision in this case and substitute the following opinion.
The defendant pled guilty to violating community control and appeared for sentencing. The trial court departed from the guidelines for the sole reason that:
The defendant previously served 3 yrs. in D.O.C. on this charge. To stay within the guidelines would require that no sentence be imposed for his violation of probation.
The defendant timely appeals his departure sentence.
A trial court can depart beyond the next cell for a violation of probation if there are clear and convincing reasons. State v. Pentaude, 500 So. 2d 526 (Fla.1987) (defendant violated seven conditions of probation within months of release and was convicted of a substantive crime while on probation). However, it is error to depart beyond one cell upwards for the sole reason that a defendant would serve no prison time unless a greater departure is imposed. Bryant v. State, 513 So. 2d 1362 (Fla.5th DCA 1987). Therefore, the defendant’s sentence is vacated and this case is remanded for resentencing.
SENTENCE VACATED and REMANDED.
COBB and COWART, JJ., concur.
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Citator
Cited By
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McGLOTHLIN v. State, 714 So. 2d 640 (Fla. 4th DCA 1998)…was appropriate because if the trial court sentenced MeGlothlin pursuant to the guidelines, his violation of probation would be virtually without penalty because he served almost three years in prison on the original sentence. In Filmare, v. State, 519 So. 2d 73 (Fla. 5th DCA 1988), the fifth district addressed a similar argument and concluded that “[a] trial court can depart beyond the next cell for a violation of probation if there are clear and convincing reasons. However, it is error to depart beyond on…
Authorities Cited
- State v. Pentaude, 500 So. 2d 526 (Fla. 1987)
- Bryant v. State, 513 So. 2d 1362 (Fla. 5th DCA 1987)