JOSEPH R. BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a trial court cannot modify probation for a second count to run consecutively to incarceration for a first count without a finding that probation for the second count was also revoked.
Appellant was sentenced for multiple violations of probation. The trial court departed from the presumptive guideline sentence for count I and modifie…
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HALL, Judge.
The appellant raises two issues on appeal. We find no merit to the appellant’s first contention that the trial court erred when it departed from the presumptive guideline sentence based upon multiple violations of probation and community control. As we stated in Williams v. State, No. 87-01981, 1990 WL 731 (Fla. 2d DCA April 4, 1990) (en banc), multiple violations of probation is a valid reason to support a departure sentence. We, therefore, affirm the sentence as to count I, but certify to the supreme court the same question set forth in Williams, as being one of great public importance.
However, we do find merit in the appellant’s second contention, which is that the trial court erred in modifying his probation for count II to run consecutively to the period of incarceration imposed for count I. The appellant points out that the order of revocation only addresses count I, and alleges that the court erred in altering the sentence for count II to extend his probation to run consecutively» to the term of incarceration imposed for count I.
The trial court erred in resentencing the appellant as to count II without a finding that the appellant's probation for that offense was also revoked. Accordingly, we reverse the sentence as to count II and remand to the trial court with directions to reinstate the original sentence as to count II.
Affirmed in part and reversed in part.
SCHEB, A.C.J., and PARKER, J., concur.
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Williams v. State, 594 So. 2d 273 (Fla. 1992)…DCA 1990); Flournoy v. State, 559 So. 2d 683 (Fla. 2d DCA [*274] 1990); Christy v. State, 559 So. 2d 683 (Fla. 2d DCA 1990); McKennie v. State, 559 So. 2d 683 (Fla. 2d DCA 1990); Stanback v. State, 559 So. 2d 459 (Fla. 2d DCA 1990); Brown v. State, 559 So. 2d 412 (Fla. 2d DCA 1990). . Other district courts of appeal have ruled that Adams has been overruled. Irizarry v. State, 578 So. 2d 711 (Fla. 3d DCA 1990); Niehenke v. State, 561 So. 2d 1218 (Fla. 5th DCA 1990); Maddox v. State, 553 So. 2d 1380 (Fla. 5th…
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Maxwell v. State, 576 So. 2d 367 (Fla. 1st DCA 1991)…has not altered this established rule because the question of a departure sentence based on multiple violations of probation was neither presented to nor ruled upon by the supreme court in Ree; issue certified to the supreme court); Brown v. State, 559 So. 2d 412 (Fla. 2d DCA 1990) (multiple violations of probation is a valid reason to support a departure sentence). We adhere to our decision on this issue in Teer, vacate the departure sentence imposed by the trial court, and remand for resentencing within t…
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Leola A. Knight v. State, 579 So. 2d 916 (Fla. 1st DCA 1991)…te the departure sentence imposed by the trial court, and remand for resentencing within the guidelines range one-cell increase. As in Maxwell, we certify direct conflict with Williams v. State, 568 So. 2d 1276 (Fla. 2d DCA 1990) and Brown v. State, 559 So. 2d 412 (Fla. 2d DCA 1990). SMITH, NIMMONS and MINER, JJ„ concur.…
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