Summary
holding that the trial court, upon remand, could consider whether a departure sentence was appropriate because it did not appear that the trial court realized that its imposed sentence constituted a departure sentence
Summary of this case from Thomas v. StateOpinion
No. 96-2077.
November 26, 1997.
An appeal from Circuit Court for Clay County; Robert Foster, Judge.
Nancy A. Daniels, Public Defender, and Raymond Dix, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General, and Trina Kramer, Assistant Attorney General, Tallahassee, for Appellee.
The aggregate term of years in the appellant's split sentence of incarceration followed by community control exceeds the sentencing guidelines recommendation, and constitutes a departure which must be supported by written reasons. See State v. Betancourt, 552 So.2d 1107 (Fla. 1989); Fla. R.Crim. P. 3.703 (d)(29), as adopted in Amendments to Florida Rules of Criminal Procedure re Sentencing Guidelines, 660 So.2d 1374 (Fla. 1995). The challenged sentences are therefore vacated due to the absence of written reasons for departure, but because it does not appear that the trial court realized that this is a departure, on remand the court may consider whether departure is appropriate and provide written reasons to support any new departure sentence. See Betancourt. The appealed orders are otherwise affirmed, and the case is remanded for resentencing.
MINER, ALLEN and PADOVANO, JJ., concur.