Opinion
No. 87-506.
July 1, 1988.
Appeal from the Circuit Court for Highlands County; Thomas M. Langston, Judge.
Charles W. Musgrove, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol M. Dittmar, Asst. Atty. Gen., Tampa, for appellee.
In a previous appeal this court reversed the appellant's sentences, holding that all the reasons given for departure from the sentencing guidelines range were improper. The guidelines recommended a prison sentence of nine to twelve years. On remand, the trial court sentenced the appellant to twelve years on Count 1 and a consecutive fifteen years probationary term on Count 2.
At the time of the offense, the guidelines prohibited a combined prison term and probationary period in excess of the recommended range. See rule 3.701(d)(12), Florida Rules of Criminal Procedure, and the pre-1984 committee note to that rule. That rule now, however, provides only that the incarcerative portion of a sentence shall be within the guidelines. Thus, under the rule as presently worded, the total term of incarceration and probation may exceed the guidelines, limited only by the statutory maximum for the crime.
The state concedes, however, that in the instant case we are obligated to apply the sentencing guidelines law in effect at the time of the offense. Miller v. Florida, 482 U.S. ___, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987).
Accordingly, we reverse the sentence and remand for resentencing consistent with this opinion.
RYDER, A.C.J., and DANAHY and FRANK, JJ., concur.