GARY JACKSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gary Jackson appeals his sentence imposed after violating community control. The trial court imposed a two-cell departure from the presumptive sentencing guideline without stating reasons for the departure, which violated Florida sentencing rules and prior precedent requiring only a one-cell increase for community control violations.
The court reversed and remanded for resentencing. The trial court erred in increasing appellant's original sentence by two cells following the 1989 community control violation without stating clear and convincing reasons for departure. The court should have sentenced appellant either within the original presumptive range of any non-state prison sanction or within the next higher cell of community control or 12-30 months incarceration.
[1] Sentences imposed after revocation of probation or community control must be in accordance with the guidelines.
[2] A sentence imposed after revocation of probation or community control may be increased to the next higher guideline cell without requiring a reason for departure.
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Join FLexlaw to unlock all legal intelligence“the trial court erroneously increased appellant's original sentence by two cells, following the 1989 violation of community control, without stating clear and convincing reasons for departure”
Establishes the core error in the trial court's sentencing decision
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Join FLexlaw to unlock all legal intelligenceJackson pled guilty to sale or purchase of cocaine in April 1988 and was placed on four years probation. In August 1988, he violated probation and was…
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SHIVERS, Chief Judge.
Appellant, Gary Jackson, appeals the sentence imposed by the trial court after Jackson violated his community control. We reverse and remand for the reasons set out below.
The record on appeal indicates that Jackson originally pled guilty to the sale or purchase of cocaine in April 1988 and was placed on four years probation — within the presumptive guideline sentence of any non-state prison sanction. In August 1988, he violated probation and was sentenced to two years community control. Four months later, he was charged with violating community control and, after a June 1989 bench trial, community control was revoked. A one-cell increase in the presumptive guideline sentence, based on violation of probation or community control, would have placed appellant in the range of community control or 12-30 months incarceration. Instead, the trial court sentenced appellant to 3¥2 years incarceration, representing a two-cell increase in the presumptive sentence. No reasons were given for the two-cell departure.
The State concedes that the trial court’s sentence was improper, based on Torres v. State, 517 So. 2d 796 (Fla. 4th DCA 1988). In Torres, the defendant was originally sentenced to two years probation. Upon violation of probation, he was sentenced to two years community control followed by two years probation. He then violated community control and was sentenced to three years imprisonment — an upward increase of two cells from the presumptive guideline sentence. The appellate court reversed and remanded for resentencing, holding that the trial court erred in using appellant’s violation of probation sentencing range rather than his original sentencing range as the starting point for applying the one-cell bump-up, without giving written reasons for departure. See also Hosmer v. State, 523 So. 2d 184 (Fla. 1st DCA 1988).
As in Torres and Hosmer, supra, the trial court in the instant case erroneously increased appellant’s original sentence by two cells, following the 1989 violation of community control, without stating clear and convincing reasons for departure. Under Rule 3.701(d)(14), Fla.R.Crim.P., the court should have either sentenced appellant within the original presumptive range of any nonstate prison sanction or, at its discretion, within the next higher cell of community control or 12-30 months incarceration.
Accordingly, we reverse appellant’s sentence and remand for resentencing in accordance with this opinion.
REVERSED and REMANDED.
JOANOS and ZEHMER, JJ., concur.
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Clenney Terrell Davis v. State, 606 So. 2d 470 (Fla. 1st DCA 1992)…r the case at the resentencing, we must vacate the unauthorized departure sentence and remand for resentencing within the guidelines. See Ree v. State, 565 So. 2d 1329, 1331-32 (Fla.1990); State v. Lyles, 576 So. 2d 706 (Fla.1991); Jackson v. State, 559 So. 2d 456 (Fla. 1st DCA 1990); Hawryluk v. State, 543 So. 2d 1318 (Fla. 5th DCA 1989); Fla.R.Crim.P. 3.701(d)(ll) and (d)(14) (1989). Four of Appellant’s Bay County cases were consolidated for purposes of appeal. We limit our discussion to the sentence in Ca…
Authorities Cited
- Hosmer v. State, 523 So. 2d 184 (Fla. 1st DCA 1988)
- Alexander Battery Sales, Inc. v. Weck, 517 So. 2d 796 (Fla. 4th DCA 1988)