JEFFREY A. TEAFORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that imposing both incarceration and community control, when the presumptive guideline sentence calls for only one, constitutes a departure from the sentencing guidelines and requires written reasons.
The defendant was convicted of aggravated battery and violating probation. The trial court sentenced him to prison followed by community control, exce…
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SCHEB, Acting Chief Judge.
Defendant, Jeffrey A. Teaford, appeals contending that in sentencing him the trial court departed from the sentencing guidelines without written reasons. We agree and remand for resentencing.
The defendant was convicted of aggravated battery and was placed on probation for five years. After being found guilty of violating his probation he was sentenced to three years in prison, to be followed by eighteen months of community control, then by four years of probation. His sentencing guidelines scoresheet indicated a recommended range of two and one-half to three and one-half years of incarceration.
Community control is a harsher alternative to probation and should not to be considered as “nonstate prison sanction” under the sentencing guidelines. State v. Mestas, 507 So. 2d 587 (Fla.1987). The Florida Supreme Court has recently held that when the presumptive guideline sentence calls for incarceration or community control, the imposition of both is a departure from the guidelines and requires proper written reasons supporting the departure. State v. Van Kooten, 522 So. 2d 830 (Fla.1988). Van Kooten disapproved Francis v. State, 487 So. 2d 348 (Fla. 2d DCA 1986) which held that in a sentence combining incarceration and community control only the incarcerative part of the sentence had to be within the guidelines, as community control was more like probation than incarceration. Since the defendant’s sentence in this case totals four and one-half years of incarceration and community control, it represents a departure from the guidelines requiring proper written reasons for the departure.
We affirm the defendant’s conviction and remand for resentencing within the range of the presumptive guideline sentence. See Shull v. Dugger, 515 So. 2d 748 (Fla.1987).
SCHOONOVER and PARKER, JJ., concur.
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Waldron v. State, 529 So. 2d 772 (Fla. 2d DCA 1988)…tion for rehearing and withdraw the opinion of Waldron v. State, No. 87-443 (Fla. 2d DCA May 6, 1988) [13 F.L.W. 1087] and substitute therefor this opinion. We also recede from our position taken in the line of cases represented by Teaford v. State, 524 So. 2d 1162 (Fla. 2d DCA 1988), holding that the trial court must resentence a defendant who has been improperly sentenced within the sentencing guidelines where the trial court did not state reasons for departure previously. Citing Daughtry v. State, 521 So.…
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Elliott v. State, 528 So. 2d 98 (Fla. 2d DCA 1988)…entences were to run concurrently with each other. We conclude first that it is not improper to impose a sentence that includes the three types of sentencing alternatives, i.e., incarceration, community control and probation. Cf. Teaford v. State, 524 So. 2d 1162 (Fla. 2d DCA 1988); Falzone v. State, 527 So. 2d 837 (Fla. 2d DCA 1988). However, a sentence that imposes incarceration plus community control, the total terms of which exceed the recommended incarcerative sentence, is a departure sentence for which…
Authorities Cited
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- State v. VanKOOTEN, 522 So. 2d 830 (Fla. 1988)
- State v. Bodine, 522 So. 2d 830 (Fla. 1988)
- State v. Mestas, 507 So. 2d 587 (Fla. 1987)
- Francis v. State, 487 So. 2d 348 (Fla. 2d DCA 1986)