Opinion
No. 88-1972.
November 2, 1989.
Appeal from the Circuit Court for Orange County; Gary L. Formet, Sr., Judge.
James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Paula C. Coffman, Asst. Atty. Gen., Daytona Beach, for appellee.
The defendant was sentenced on a drug charge after violating probation. The reason given for imposing a departure sentence was that the defendant violated his probation by selling drugs. Upon a violation of probation, the sentencing court may sentence the defendant only within a one cell upward increase from the original guideline range (Florida Rule of Criminal Procedure 3.701d.14.) and factors relating to the violation of probation or community control cannot be used as grounds for departure from the recommended guideline sentence range. See, Franklin v. State, 545 So.2d 851 (Fla. 1989); Lambert v. State, 545 So.2d 838 (Fla. 1989). See also Dewberry v. State, 546 So.2d 409 (Fla. 1989); Branton v. State, 548 So.2d 882 (Fla. 5th DCA 1989).
The departure sentence is vacated and the cause is remanded for resentencing.
SENTENCE VACATED; REMANDED.
COWART and GOSHORN, JJ., and HARRIS, Associate Judge, concur.