Opinion
No. 92-00202.
June 18, 1993.
Appeal from the Circuit Court, Hillsborough County, Harry Lee Coe, III, J.
James Marion Moorman, Public Defender, and Jennifer Y. Fogle, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and David R. Gemmer, Asst. Atty. Gen., Tampa, for appellee.
The appellant claims that his sentence of twenty-one years' incarceration was an improper upward departure because it was based on an invalid departure reason. The reason given by the trial court was that the appellant, while on probation, obstructed an officer with violence and the altercation resulted in the police officer's thumb being broken. The appellant was found in violation of probation based in part on that incident.
The appellant correctly argues that factors related to violation of probation or community control cannot be used as grounds for a departure sentence. Lambert v. State, 545 So.2d 838 (Fla. 1989). Accordingly, we reverse and remand for resentencing within the sentencing guidelines.
Reversed and remanded for resentencing.
DANAHY, Acting C.J., and LEHAN and PATTERSON, JJ., concur.