Opinion
Case Nos. 3D03-824 3D02-3433
July 2, 2003.
Appeals from the Circuit Court for Dade County, Pedro Echarte, Jr., Judge. Lower Tribunal No. 00-14464.
Bennett H. Brummer, Public Defender and Billie Jan Goldstein, Assistant Public Defender, for appellant.
Charles J. Crist, Jr., Attorney General and Jason Helfant, Assistant Attorney General, for appellee.
Before SCHWARTZ, C.J., and RAMIREZ, J., and NESBITT, Senior Judge.
We find no error in the determination that the defendant violated the terms of his community control order and therefore affirm the resulting convictions. As to the sentence, the record shows that the trial judge rejected recommendations from the prosecution and community control officer for more lenient treatment and instead imposed a sentence of three years in state prison under the Y.O.A. because he said, he had warned McCray about the severe consequences of his violating his community control when it was imposed, and felt obliged to "keep [his] word." The transcript of the earlier proceeding reveals, however, that no such warning was given. In these circumstances, in which it appears that the sentence actually imposed resulted from a misapprehension of fact, we deem it appropriate to vacate the sentence and remand for resentencing in the light of this conclusion and other pertinent circumstances. See Scott v. State, 484 So.2d 100 (Fla. 1st DCA 1986); cf. Royster v. State, 691 So.2d 1196 (Fla. 4th DCA 1997); Smith v. State, 664 So.2d 72 (Fla. 3d DCA 1995); Vezina v. State, 644 So.2d 602 (Fla. 1st DCA 1994).
Affirmed in part, vacated in part and remanded.