Opinion
No. 90-918.
April 11, 1991.
Appeal from the Circuit Court, Bay County, Clinton Foster, J.
Nancy Daniels, Public Defender and Abel Gomez, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen. and Amelia L. Beisner, Asst. Atty. Gen., Tallahassee, for appellee.
This is an appeal of a sentence departing upward from the guidelines. We vacate the sentence and remand.
McGriff pled nolo contendere to three counts of violation of community control and one count of probation. The guideline score called for community control or 12-30 months incarceration. The trial judge departed from the guidelines and gave McGriff consecutive maximum sentences of 15 years imprisonment on the three counts of violation of community control and 5 years imprisonment on the violation of probation. This sentence totaled 50 years.
McGriff argues on appeal that departure beyond a one cell increase for violation of community control or probation is prohibited by Lambert v. State, 545 So.2d 838 (1989). Sellers v. State, 563 So.2d 214 (Fla. 1st DCA 1990). State concedes McGriff is right, and we agree.
We vacate the sentence and remand for resentencing within the guidelines or with a one cell increase pursuant to Rule of Criminal Procedure 3.701(d)(14).
WIGGINTON and MINER, JJ., concur.