Opinion
No. 90-661.
December 19, 1990.
Appeal from the Circuit Court, Bay County, Clinton Foster, J.
Jeffrey P. Whitton, Panama City, for appellant.
Robert A. Butterworth, Atty. Gen., Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.
This is an appeal of the appellant's sentence received following a plea of no contest to a charge of possession of crack cocaine. As part of the plea, the appellant accepted a one-cell increase beyond the guidelines sentence.
Over the next several months, the appellant twice violated community control. The trial judge imposed a departure sentence for the second violation of community control and stated that the reasons for departure were the several aspects of violation of probation. It is error to support a departure sentence with circumstances surrounding a violation of probation. Lambert v. State, 545 So.2d 838 (Fla. 1989). Furthermore, where a negotiated plea for a one-cell increase is used for the primary offense, the court cannot use the increased range as a starting point for the additional one-cell increase for violation of community control. Hosmer v. State, 523 So.2d 184 (Fla. 1st DCA 1988).
For these reasons, we must vacate the sentence of the defendant and remand for resentencing in accordance with rule 3.701(d)(14), Florida Rules of Criminal Procedure.
JOANOS and BARFIELD, JJ., concur.