Opinion
No. 85-473.
January 23, 1986.
Appeal from the Circuit Court, Putnam County, E.L. Eastmoore, J.
James B. Gibson, Public Defender, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.
Upon conviction the defendant was first placed on probation with the condition to serve certain jail time. After she later violated probation and it was revoked she was sentenced to 37 months incarceration which sentence departed upward two cell blocks from the recommended guideline sentence. No reasons were given for imposing a departure sentence.
We affirm the conviction but vacate the sentence. A sentence imposed after revocation of probation may now be increased one cell without a given reason for departure. Fla.R.Crim.P. 3.701(d)(14). It is immaterial that if the 220 days credit for jail time served as a condition of her probation were subtracted from the 37 months imprisonment, the sentence would have been within the one cell block increase permitted for the probation violation. Under section 921.161, Florida Statutes, the defendant was entitled to credit for the jail time served, see Kirkman v. Wainwright, 465 So.2d 1262 (Fla. 5th DCA 1985), and a sentence in confirmity with the sentencing guidelines.
CONVICTION AFFIRMED; SENTENCE VACATED; CAUSE REMANDED.
DAUKSCH and ORFINGER, JJ., concur.