DAVID EARL PRIMM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Primm appeals his sentence for battery on a correctional officer, arguing that the trial court imposed a split sentence (incarceration plus community control) that departed from sentencing guidelines without providing written reasons for the departure. The court agrees and remands for resentencing within the guidelines, finding that the Florida Supreme Court's recent decision in State v. Van Kooten requires written reasons for departures when guidelines call for one sanction but both incarceration and community control are imposed.
A split sentence imposing both incarceration and community control when the presumptive guidelines sentence calls for only one sanction is a departure sentence that requires clear and convincing written reasons. The court reversed and remanded because Primm's sentence was not supported by written reasons for departure.
[1] A split sentence of incarceration and community control constitutes a departure from the recommended guidelines sentence when the presumptive guidelines sentence calls fo…
[2] Imposition of a departure sentence requires clear and convincing reasons for the departure.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“when the presumptive guidelines sentence calls for community control or incarceration, the imposition of both sanctions represents a departure sentence and requires clear and convincing reasons for the departure”
Establishes the legal standard that split sentences combining both sanctions constitute departures requiring written reasons
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Join FLexlaw to unlock all legal intelligencePrimm was convicted of battery on a correctional officer. His sentencing guidelines score placed him in a range of two and one-half to three and one-h…
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HALL, Judge.
David Primm appeals from his sentence for battery on a correctional officer. He argues that the trial court erred in exceeding the guidelines sentence without filing written reasons for departure. We agree and remand for resentencing within the guidelines. The appellant’s score fell into the second cell range of two and one-half to three and one-half years in prison. He was sentenced to three and one-half years in prison and one and a half years’ community control. He argues that this split sentence is a departure from the guidelines and that the trial court did not support the departure with written reasons. The state argues that a split sentence of incarceration and community control is a legal sentence not requiring written reasons for departure under Francis v. State, 487 So. 2d 348 (Fla. 2d DCA 1986). In Francis this court held that as long as the incarcerative portion of the sentence is within the recommended guidelines range and the total sanction is within the statutory limit, the sentence is not a departure sentence and written reasons are not necessary.
The Florida Supreme Court recently disapproved Francis in State v. Van Kooten, 522 So. 2d 830 (Fla.1988), and held that when the presumptive guidelines sentence calls for community control or incarceration, the imposition of both sanctions represents a departure sentence and requires clear and convincing reasons for the departure. Since the appellant’s split sentence totals five years, it is a departure from the recommended sentence. Because the sentence is unsupported by written reasons, this case must be remanded for resentencing within the guidelines.
We find no merit in the appellant’s remaining point on appeal.
Reversed and remanded for proceedings consistent with this opinion.
SCHEB, A.C.J., and CAMPBELL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hankey v. State, 529 So. 2d 736 (Fla. 5th DCA 1988)…30 months’ incarceration and community control constitutes a departure sentence, and certified conflict with Francis. The supreme court in State v. VanKooten, 522 So. 2d 830 (Fla.1988) approved VanKooten and disapproved Francis. In Primm v. State, 524 So. 2d 475 (Fla. 2d DCA 1988), the recommended guideline sentence was t£hr-Zlk years’ incarceration, and the sentence imposed was Zlk years in prison and IV2 years’ community control. Recognizing that the case was controlled by the supreme court’s decision in…
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Williams v. State, 528 So. 2d 453 (Fla. 5th DCA 1988)…3½ years’ imprisonment subsumes or exhausts the recommended guideline range of 21/2-31/2 years; therefore, the sentence constitutes a departure from the maximum recommended guidelines sentence. The Second District Court of Appeal in Primm v. State, 524 So. 2d 475 (Fla. 2d DCA 1988) recognizes both this and that the principle in Hankey v. State, 505 So. 2d 701 (Fla. 5th DCA 1987), rev. denied, 515 So. 2d 230 (Fla. 1987) and in VanKooten v. State, 512 So. 2d 214 (Fla. 5th DCA 1987), approved, 522 So. 2d 830 (F…
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Gulker v. State, 528 So. 2d 434 (Fla. 5th DCA 1988)…f 30 months’ incarceration and community control constituted a departure sentence and certified conflict with Francis. The supreme court in State v. VanKooten, 522 So. 2d 830 (Fla.1988) approved VanKooten and disapproved Francis. In Primm v. State, 524 So. 2d 475 (Fla.2d DCA 1988), the recommended guideline sentence was 21/2-3½ years’ incarceration, and the sentence imposed was 3½ years in prison and IV2 year’s community control. Recognizing that the issue was controlled by the supreme court’s decision in St…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. VanKOOTEN, 522 So. 2d 830 (Fla. 1988)
- State v. Bodine, 522 So. 2d 830 (Fla. 1988)
- Francis v. State, 487 So. 2d 348 (Fla. 2d DCA 1986)