CARL SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed both sentences imposed upon probation revocation because the burglary sentence exceeded the permissible one-cell bump-up increase and the grand theft sentence exceeded the statutory maximum already served.
A probation revocation sentence for burglary cannot exceed the one-cell bump-up from the original sentencing guidelines range, and a grand theft sentence cannot be imposed when the defendant has already served the statutory maximum for that offense.
[1] Upon probation revocation, a sentence for burglary cannot exceed the one-cell bump-up increase from the original sentencing guidelines range.
[2] A sentence cannot be imposed for an offense when the defendant has already served the statutory maximum term of imprisonment for that offense.
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Join FLexlaw to unlock all legal intelligenceCarl Smith was on probation for burglary and grand theft when he violated probation. The trial court revoked his probation and imposed a 6-year senten…
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PER CURIAM.
Carl Smith appeals a final judgment that revokes his probation for burglary and grand theft and imposes a 6-year prison sentence for the burglary and a concurrent 5-year prison term for the grand theft. Smith raises two contentions: (1) the 6-year sentence for the burglary is illegal because it exceeds the one-cell bump up from the original score-sheet range, or a maximum of 5½ years in prison, which he could have received for violating probation; and (2) the 5-year sentence for the grand theft is illegal because prior to violating probation, he had already served a portion of the original sentence of 5 years’ imprisonment to be followed by a 3-year period of probation which exceeds the statutory maximum term of 5 years’ imprisonment for the offense.
We reverse the 6-year sentence for the burglary in accordance with Hosmer v. State, 523 So. 2d 184 (Fla. 1st DCA 1988), and remand for resentencing at which the circuit court must state reasons in the event that he chooses to impose a departure sentence.
We also reverse the 5-year sentence for the grand theft because it is undisputed that Smith has already served the statutory maximum term for that offense.
REVERSED and REMANDED.
ZEHMER, C.J., and ERVIN and WEBSTER, JJ., concur.