Opinion
No. 93-3080.
December 7, 1994.
Appeal from the Circuit Court for Palm Beach County; Walter Colbath, Jr., Judge.
Richard L. Jorandby, Public Defender, Frantz K. Vital and Cherry Grant, Asst. Public Defenders, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Joseph A. Tringali, Asst. Atty. Gen., West Palm Beach, for appellee.
Defendant appeals his convictions for battery on a police officer and resisting arrest with violence. We affirm his convictions but reverse the sentence, as the State agrees we should, because the court sentenced defendant to a combination of both incarceration and community control, and the guidelines specify incarceration or community control. State v. Davis, 630 So.2d 1059 (Fla. 1994). We therefore remand for resentencing. We agree with the defendant that the court can consider a departure sentence because it is obvious that the court was not aware it was imposing a departure sentence. State v. Betancourt, 552 So.2d 1107 (Fla. 1989).
HERSEY, STONE and KLEIN, JJ., concur.