Opinion
No. 87-828.
November 3, 1988.
Appeal from the Circuit Court, Orange County, Ted P. Coleman, J.
James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
The defendant was originally adjudicated guilty of two offenses: attempted armed robbery (§ 812.13(2)(a), Fla. Stat.) and aggravated battery (§ 784.045(1)(b), Fla. Stat.). He was sentenced to thirty months imprisonment on the aggravated battery offense and was placed on five years probation on the attempted armed robbery offense. After serving the confinement sentence on the aggravated battery offense, the defendant violated his probation on the attempted armed robbery offense by committing a new crime involving the possession of cocaine. After his probation was terminated, he was sentenced in this case on the original offense of attempted armed robbery. The guidelines scoresheet prepared at that sentencing totals 60 points, resulting in a recommended guideline sentence of community control or 12-30 months' incarceration. The trial court imposed a sentence of incarceration for a term of 7 1/2 years "followed by a period of restored and extended to 7 1/2 years on probation" giving as reasons for departure:
We do not understand what was intended or accomplished by this quoted language.
The defendant served 2 1/2 years, the maximum in this cell. He then began a term of probation. He violated the probation by committing a new crime, possession of cocaine. To stay within the recommended guideline would be to impose no punishment.
The defendant appeals the departure sentence.
The 2 1/2 years the defendant was previously incarcerated was as punishment for the aggravated battery offense. He is now being sentenced for the attempted armed robbery offense for which he was originally placed on probation. Florida Rule of Criminal Procedure 3.701d.14. provides that a sentence imposed after revocation of probation may be increased to the next higher cell (guideline range) without requiring a reason for departure. The next higher guideline range cell authorizes 2 1/2-3 1/2 years incarceration. For some reason not shown by the record, the possession of cocaine charge which was the basis for termination of the probation on the attempted armed robbery offense apparently did not constitute an additional offense at conviction (Rule 3.701d.4.) and was therefore not part of this scoresheet in this case. If the defendant is convicted of the cocaine charge, he can then be sentenced and punished for that offense; that charge is no reason for a departure sentence in this case.
We cannot agree with the trial court that the imposition of a non-departure sentence of 3 1/2 years incarceration for the offense of attempted armed robbery for which the defendant is now being sentenced will constitute "no punishment."
The reasons for departure being insufficient, the sentence imposed is vacated and the cause is remanded with directions that the trial court impose a sentence within the authorized guidelines range, being a sentence not exceeding 3 1/2 years incarceration.
SENTENCE VACATED, CAUSE REMANDED.
SHARP, C.J., and ORFINGER, J., concur.
COWART, J., concurs specially with opinion.
I concur but note that the defendant was sentenced to incarceration as to one offense and placed on probation in lieu of being sentenced as to another offense. In the sentencing alternative classification scheme contained in Poore v. State, 531 So.2d 161 (Fla. 1988), as to one offense the sentence was "(1) a period of confinement" and as to the second offense the sentencing alternative was "(5) straight probation." This case involves neither a "true split sentence" under section 948.01(8), Florida Statutes, nor a "probationary split sentence." In the opinion in O'Brien v. State, 478 So.2d 497 (Fla. 5th DCA 1985), cause dismissed, 480 So.2d 1296 (Fla. 1985), O'Brien's sentence in this case was referred to as a "split sentence." That statement was an error.