DAVID PRINGAL, ETC., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellate court vacated defendant's upward departure sentence because the trial court improperly relied on the new possession charge—which was the basis for the community control violations—as a ground for departure from sentencing guidelines.
A sentencing court cannot use a new charge as a ground for upward departure when that same charge is the basis for violations of probation or community control.
[1] A sentencing court may not use a new criminal charge as a basis for upward departure from sentencing guidelines when that charge is itself the predicate for violations of…
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Join FLexlaw to unlock all legal intelligencePringal received sentences of 5 years for possession of cocaine, 5 years for possession after community control violation, and 15 years for sale/deliv…
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PETERSON, Judge.
David Pringal appeals his sentence because of an upward departure from the guidelines. We vacate the sentence and remand.
The court imposed sentences of five years in the Department of Corrections for a new charge of possession of cocaine, five years for possession of cocaine after violation of community control, and fifteen years for sale or delivery of cocaine after violation of community control. The recommended sentencing range was 3V2 to 4V2 years with a one-cell bump for community control violation. Rule 3.701(d)(14), Fla.R. Crim.P. The written reasons for departure were that it was Pringal’s third violation of probation or community control and that the new violation of possession of cocaine was committed within six months of his being placed on community control. The new possession charge was the basis for the violations of community control and cannot be used as a ground for departure. Ree v. State, 565 So. 2d 1329 (Fla.1990); Hamilton v. State, 548 So. 2d 234 (Fla. 1989); Lambert v. State, 545 So. 2d 838 (Fla.1989); Coney v. State, 560 So. 2d 429 (Fla. 5th DCA 1990); Johnson v. State, 557 So. 2d 203 (Fla. 5th DCA 1990); and Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989).
We vacate the sentence and remand for resentencing within the guidelines.
Sentence VACATED; REMANDED. DANIEL, C.J., and HARRIS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Maxwell v. State, 576 So. 2d 367 (Fla. 1st DCA 1991)…f appeal have followed Lambert and Ree and disapproved departure sentences on revocation of probation or community control above the one-cell bump-up authorized in rule 3.701(d)14. Teer v. State, 557 So. 2d 911 (Fla. 1st DCA 1990); Pringal v. State, 564 So. 2d 285 (Fla. 5th DCA 1990); Maddox v. State, 553 So. 2d 1380, 1381 (Fla. 5th DCA 1989) (While two violations of probation for the same offense have been held to be a valid ground for departure in Adams, “we read the language in Ree to mean what it states a…
Authorities Cited
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989)
- Hamilton v. State, 548 So. 2d 234 (Fla. 1989)
- Lavaughn Boggs v. State, 557 So. 2d 203 (Fla. 2d DCA 1990)
- Johnson v. State, 557 So. 2d 203 (Fla. 5th DCA 1990)
- Coney v. State, 560 So. 2d 429 (Fla. 5th DCA 1990)