GEORGE SINKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
AFFIRMED.
GLICKSTEIN, GUNTHER and STONE, JJ., concur.
ON MOTION FOR REHEARING
PER CURIAM.
Having affirmed the trial court’s revocation of community control and the sentence it imposed thereafter, notwithstanding both parties’ contentions that we may have overlooked their supplemental briefs in which they agree we are bound by State v. Davis, 630 So. 2d 1059 (Fla.1994), and State v. VanKooten, 522 So. 2d 830 (Fla.1988), we deny appellant’s motion for rehearing.
Appellant was originally convicted of a lewd and lascivious act upon a child and sentenced to two years community control followed by ten years probation.
The trial court concluded, and we agreed by our Per Curiam Affirmed, that appellant was in willful violation of his community control. In doing so, the trial court noted that it believed appellant was a danger to other young boys in the community, and explained to appellant that the original sentence imposed was designed to provide “the most amount of supervision to make sure that this wouldn’t happen again. But as soon as you got out of jail, you decided you didn’t, at least until you decided you got your life in order, weren’t going to be under any supervision and that’s exactly what I wanted to try and stop from happening by my [original community control] sentence.”
Appellant’s community control and probation were revoked and appellant was sentenced to four years imprisonment to be followed by two years community control and eight years probation. The parties contend that appellant was improperly sentenced to both incarceration and community control. We disagree.
“[W]hen the presumptive guideline sentence directs community control or incarceration, the imposition of both represents a departure from the sentencing guidelines, requiring proper written reasons for the departure.” VanKooten, 522 So. 2d at 830-31; accord Davis, 630 So. 2d at 1059-60. We read these cases, however, to apply only where the guidelines sentencing range presents mutually exclusive disjunctive sentencing alternatives. See also Gilyard v. State, 636 So. 2d 134 (Fla.2d DCA 1994).
In the instant ease, appellant’s sentence was imposed after revocation of his community control, which permitted the trial judge to sentence appellant within the next higher cell without a written reason for departure. Florida Rule of Criminal Procedure 3.701(d)(14) provides:
(14) Sentences imposed after revocation of probation or community control must be in accordance with the guidelines. The sentence imposed after revocation of probation or community control may be included within the original cell (guidelines range) or may be increased to the next higher cell (guidelines range) without requiring a reason for departure.
In this case, the next higher cell provides for a recommended sentencing range of three and one-half to four and one-half years incarceration and a permitted sentencing range of two and one-half to five and one-half years incarceration. This next highest cell does not involve “disjunctive sentences.” Accordingly, the trial court did not err in sentencing appellant to both incarceration and community control without a written reason for departure.
GLICKSTEIN and GUNTHER, JJ., concur. STONE, J., dissents with opinion.
STONE, Judge,
dissenting.
Acknowledging some uncertainty as to the limits of the VanKooten reasoning as applied in State v. Davis, 630 So. 2d 1059 (Fla.1994), I nevertheless conclude that Davis applies to this sentence. I would therefore grant rehearing, reverse the sentence, and remand for resentencing with leave to consider whether there are grounds for departure.
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Sinks v. State, 661 So. 2d 303 (Fla. 1995)…PER CURIAM. We have for review Sinks v. State, 646 So. 2d 229 (Fla. 4th DCA 1994), in which the district court addressed the same question we recently answered in Gilyard v. State, 653 So. 2d 1024 (Fla.1995). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. In accordance with our decision in Gilyard, we…
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Sinks v. State, 691 So. 2d 1202 (Fla. 4th DCA 1997)…and eight years probation. That revocation was the subject of appellant’s prior appeal, wherein we upheld the revocation and found no error sentencing appellant to both incarceration and community control under the facts of the case. Sinks v. State, 646 So. 2d 229 (Fla. 4th DCA 1994). The supreme court agreed that this was not error, but reversed and remanded in part for resentencing because the sentence imposed exceeded the applicable guideline cell range. Sinks v. State, 661 So. 2d 303 (Fla.1995). Soon th…
Authorities Cited
- State v. Davis, 630 So. 2d 1059 (Fla. 1994)
- State v. VanKOOTEN, 522 So. 2d 830 (Fla. 1988)
- State v. Bodine, 522 So. 2d 830 (Fla. 1988)
- Reginell Leetrez Gilyard v. State, 636 So. 2d 134 (Fla. 2d DCA 1994)