Blake v. State

622 So. 2d 633, 1993 Fla. App. LEXIS 8495, 1993 WL 310807

Opinion

PER CURIAM.

Reviewing the record and considering the state’s confession of error, we vacate the sentence under review and remand for re-sentencing within the sentencing guidelines. The fact that the defendant, after entering into a written plea agreement, requested jail time rather than community control, did not constitute a valid basis for departure from the guidelines. See Tirado v. State, 583 So.2d 730 (Fla. 3d DCA 1991). At no time did defendant waive her right to be sentenced under the guidelines, thus distinguishing this case from Turner v. State, 611 So.2d 1363 (Fla. 5th DCA 1993). Accordingly, the court erred by imposing a departure sentence of five years incarceration instead of the 22-month maximum incarceration allowed under the guidelines.

Sentence vacated and cause remanded.