Opinion
No. 89-37.
January 11, 1990.
Appeal from the Circuit Court for Marion County; Raymond T. McNeal, Judge.
James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Div., Office of the Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Bonnie Jean Parrish, Asst. Atty. Gen., Daytona Beach, for appellee.
The departure sentence imposed, based on factors relating to the violation of probation, is vacated on the authority of Franklin v. State, 545 So.2d 851 (Fla. 1989); Lambert v. State, 545 So.2d 838 (Fla. 1989); see also, Dewberry v. State, 546 So.2d 409 (Fla. 1989); Phillips v. State, 550 So.2d 1189 (Fla. 5th DCA 1989); and Branton v. State, 548 So.2d 882 (Fla. 5th DCA 1989). The cause is remanded for resentencing within the recommended guidelines range. See Shull v. Dugger, 515 So.2d 748 (Fla. 1987); see also Branton, supra. The trial court may (but need not) bump up one cell. Franklin v. State, supra; Fla.R. Crim.P. 3.701(d)14.
SENTENCE VACATED; CAUSE REMANDED.
DAUKSCH, SHARP and COWART, JJ., concur.