Opinion
No. 86-2092.
January 16, 1990.
An Appeal from the Circuit Court for Dade County; Arthur I. Snyder, Judge.
Bennett H. Brummer, Public Defender, and Richard J. Preira, Sp. Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., for appellee.
Before BASKIN, LEVY and GERSTEN, JJ.
The State correctly concedes that the trial court erred in departing from sentencing guidelines in sentencing defendant for a violation of probation when departure was based on a crime for which defendant was acquitted. Lambert v. State, 545 So.2d 838 (Fla. 1989); Bell v. State, 545 So.2d 861 (Fla. 1989); Tuthill v. State, 518 So.2d 1300 (Fla. 3d DCA 1988). A one cell increase, as provided in the guidelines, is the only allowable departure, Hamilton v. State, 548 So.2d 234 (Fla. 1989); Mitchell v. State, 554 So.2d 572 (Fla. 3d DCA 1989); Fla.R.Crim P. 3.701(d)(14), if departure is appropriate.
Sentence vacated; remanded for resentencing.