ALAN LEONARD BOGUSH, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that while the defendant could be placed on community control as an habitual offender, his sentence upon violation was erroneous due to a prior understanding regarding the maximum sentence.
The defendant pleaded guilty to delivery of cocaine and was placed on community control as an habitual offender. Upon violation of community control, …
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PER CURIAM.
We review Bogush v. State, 597 So. 2d 420 (Fla. 2d DCA 1992), because of its conflict with State v. Kendrick, 596 So. 2d 1153 (Fla. 5th DCA), review dismissed, 613 So. 2d 5 (Fla.1992). We have jurisdiction under article V, section 3(b)(3) of the Florida Constitution.
In McKnight v. State, 616 So. 2d 31 (Fla.1993), we disapproved Kendrick and adopted the en banc opinion in King v. State, 597 So. 2d 309 (Fla. 2d DCA), review denied, 602 So. 2d 942 (Fla.1992), which held that an habitual offender could be placed on community control. Therefore, the conflict of decisions is resolved.
Thus, Bogush was properly placed on community control as an habitual offender following his plea of guilty to delivery of cocaine. However, upon his violation of community control, Bogush was erroneously sentenced to thirty years’ imprisonment. While sentencing as an habitual offender would have ordinarily permitted a thirty-year sentence, Bogush pled guilty to violating community control upon the understanding that the maximum sentence he could receive would be fifteen years. See Ashley v. State, 614 So. 2d 486 (Fla.1993).
Accordingly, we approve the decision below except for the sentence for delivery of cocaine which shall be reduced to fifteen years.
It is so ordered.
BARKETT, C.J., and OVERTON, McDonald, shaw, grimes, kogan and HARDING, JJ., concur.
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Ackers v. State, 629 So. 2d 972 (Fla. 5th DCA 1993)…the court adopted the rationale of the en banc opinion in King v. State, 597 So. 2d 309 (Fla. 2d DCA), rev. denied, 602 So. 2d 942 (Fla.1992), and disapproved our opinion in Kendrick to the extent that it was in conflict. See also, Bogush v. State, 626 So. 2d 189 (Fla.1993). In light of McKnight, we quash Ackers’ two forty-year sentences and remand with instructions that the trial court resentence Ackers according to the very specific procedure outlined in King v. State: In order to properly sentence a def…
Authorities Cited
- Ashley v. State, 614 So. 2d 486 (Fla. 1993)
- King v. State, 597 So. 2d 309 (Fla. 2d DCA 1992)
- State v. Kendrick, 596 So. 2d 1153 (Fla. 5th DCA 1992)
- McKNIGHT v. State, 616 So. 2d 31 (Fla. 1993)
- THE Florida BAR v. Neckman, 616 So. 2d 31 (Fla. 1993)
- Bogush v. State, 597 So. 2d 420 (Fla. 2d DCA 1992)