GARY REED, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gary Reed appealed his sentence for burglary and battery after pleading nolo contendere. The Fourth District Court of Appeal reversed because the trial court imposed an impermissible guideline departure by combining incarceration and community control without written justification, exceeding the recommended sentencing guideline range.
The split sentence constituted an impermissible upward departure from the sentencing guidelines because the combination of incarceration and community control exceeded the recommended guideline sentence, and the trial court provided no written reasons for the departure. The sentence was reversed and remanded for resentencing either within the guidelines or with valid written reasons for departure. Additionally, the trial court was directed to delete court costs from the written judgment to conform with the oral pronouncement waiving such costs.
[1] A split sentence combining incarceration and community control that exceeds the recommended guideline sentence constitutes an impermissible upward departure without writt…
[2] The Youthful Offender Act limits a youthful offender sentence to the maximum sentence authorized under the sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“The combination of incarceration and community control exceeded the recommended guideline sentence (a permitted range of 42.4 to 70.7 months with a recommended sentence of 56.6 months), thereby constituting an upward departure without written reasons.”
Establishes the core basis for reversal—the split sentence exceeded guideline recommendations and lacked written justification
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Join FLexlaw to unlock all legal intelligenceGary Reed pled nolo contendere to burglary of a conveyance with assault or battery (Count I) and battery (Count II). The trial court imposed a youthfu…
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POLEN, Judge.
Gary Reed pled nolo contendere to Count I, burglary of a conveyance with an assault or battery, and Count II, battery. The court imposed a youthful offender sentence on Count I of four (4) years in the Department of Corrections to be followed by two (2) years community control. Reed was sentenced to time served on Count II. Because this sentence constitutes an impermissible guideline departure, we reverse and remand for resentencing.
The trial court erred by imposing the split sentence of four years incarceration, followed by two years community control. The combination of incarceration and community control exceeded the recommended guideline sentence (a permitted range of 42.4 to 70.7 months with a recommended sentence of 56.6 months), thereby constituting an upward departure without written reasons. See Betancourt v. State, 550 So. 2d 1121 (Fla. 3d DCA), aff'd in part, 552 So. 2d 1107 (Fla.1989) (combination of incarceration and community control exceeded recommended guideline sentence, and was departure sentence necessitating written reasons; the Youthful Offender Act limits a youthful offender sentence to the maximum sentence authorized under the sentencing guidelines); Jones v. State, 582 So. 2d 181 (Fla. 4th DCA 1991) (reversing sentence of four years probation followed by two years community control on the authority of Betancourt, as an upward departure from the sentencing guidelines).
Since it does not appear that the trial court realized it was imposing a departure sentence, upon remand the trial court can resentence within the guidelines or provide a valid written reason for departure. State v. Betancourt, 552 So. 2d 1107 (Fla.1989).
On remand we also direct the trial court to delete the court costs included in the written judgment. At the sentencing hearing the trial court stated that it was waiving court costs. The written judgment must be corrected to conform with the oral pronouncement. See Thomas v. State, 595 So. 2d 287 (Fla. 4th DCA 1992)(trial court’s correction of written sentence to conform to oral pronouncement was proper).
GUNTHER, C.J., and FARMER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Betancourt, 552 So. 2d 1107 (Fla. 1989)
- Thomas v. State, 595 So. 2d 287 (Fla. 4th DCA 1992)
- Betancourt v. State, 550 So. 2d 1121 (Fla. 3d DCA 1989)
- Phillips v. State, 582 So. 2d 181 (Fla. 4th DCA 1991)
- Jones v. State, 582 So. 2d 181 (Fla. 4th DCA 1991)