Alexander v. State

568 So. 2d 1341, 1990 Fla. App. LEXIS 8407, 1990 WL 168328

Opinion

ERVIN, Judge.

The upward departure sentence imposed upon appellant is reversed and remanded. The trial court is directed on remand to impose a sentence within the guidelines. Pope v. State, 561 So.2d 554 (Fla.1990).

We approve, however, the type of sentence imposed — a probationary split sentence. Poore v. State, 531 So.2d 161 (Fla.1988); Glass v. State, 556 So.2d 465 (Fla. 1st DCA 1990), petition for review filed, No. 75,600 (Fla. Feb. 27, 1990) (oral argument scheduled Dec. 6, 1990). As in Glass, however, we certify the following question to the supreme court as one of great public importance:

DOES A DOUBLE JEOPARDY VIOLATION RESULT FROM THE IMPOSITION OF A PROBATIONARY SPLIT SENTENCE WHEN THE LEGISLATURE HAS NOT EXPLICITLY AUTHORIZED THAT DISPOSITION IN THE SENTENCING ALTERNATIVES OF SECTION 921.187, FLORIDA STATUTES?

REVERSED and REMANDED in part, and APPROVED in part.

BOOTH and BARFIELD, JJ., concur.