GEORGE GRAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
The parties agree that sentencing was imposed in this case based upon a mutually mistaken view of the applicable law. Appellant suggests that our remand be accompanied by instructions that a sentence within the guidelines must be imposed. The state argues that the rationale of such eases as Chaplin v. State, 473 So. 2d 842 (Fla. 1st DCA 1985), dec. approved, 490 So. 2d 52 (Fla. 1986), indicate that a departure sentence on remand is not prohibited where the trial court at the first sentencing labors under a misapprehension that the sentence being imposed is not a departure from the applicable sentencing guidelines. We agree. See State v. Betancourt, 552 So. 2d 1107 (Fla.1989); Davis v. State, 636 So. 2d 575 (Fla. 4th DCA 1994); Harmon v. State, 599 So. 2d 754 (Fla. 4th DCA 1992).
In all other respects we affirm and remand for sentencing under the law in effect at the time the crimes were committed, which, in the discretion of the trial court, may include a departure sentence.
DELL, C.J., HERSEY and WARNER, JJ., concur.
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Cited By
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Strouse v. State, 789 So. 2d 525 (Fla. 4th DCA 2001)…ts v. State, 761 So. 2d 1245 (Fla. 2d DCA 2000). Because the record shows that the court sentenced Strouse due, in part, to its erroneous belief that Strouse would not have to serve 85% of his sentence, we remand for resentencing. See Gray v. State, 645 So. 2d 550, 550 (Fla. 4th DCA 1994). REMAND FOR RESENTENCING. STONE and GROSS, JJ., concur. For sentences imposed for offenses committed on or after October 1, 1995, the department may grant up to 10 days per month of incentive gain time, except that no…
Authorities Cited
- State v. Betancourt, 552 So. 2d 1107 (Fla. 1989)
- State v. Chaplin, 490 So. 2d 52 (Fla. 1986)
- Chaplin v. State, 473 So. 2d 842 (Fla. 1st DCA 1985)
- Harmon v. State, 599 So. 2d 754 (Fla. 4th DCA 1992)
- Davis v. State, 636 So. 2d 575 (Fla. 4th DCA 1994)