Burg v. State

District Court of Appeal of Florida

Burg v. State

550 So. 2d 1192, 14 Fla. L. Weekly 2545, 1989 Fla. App. LEXIS 6109, 1989 WL 129803

CourtDistrict Court of Appeal of Florida

DecidedNovember 2, 1989

DocketNo. 88-2319

StatusPublished

Cited by1 cases

This text of 550 So. 2d 1192 (Burg v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burg v. State, 550 So. 2d 1192, 14 Fla. L. Weekly 2545, 1989 Fla. App. LEXIS 6109, 1989 WL 129803 (Fla. Ct. App. 1989).

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Opinion

DANIEL, Chief Judge.

Defendant David Burg has taken this appeal from his judgment and sentence which were imposed by the trial court after defendant pleaded guilty to violating his community control. The trial court, in imposing sentence on defendant, departed three cells upward and ordered defendant to serve a term of five years imprisonment. It was error for the trial court to impose this departure sentence because upon a violation of probation or community control the trial court must resentence defendant either within the original guidelines or within the permissive one cell upward increase ¹ — no further increase or departure is permitted for any reason. Franklin v. State, 545 So.2d 851 (Fla.1989). See also Dewberry v. State, 546 So.2d 409 (Fla.1989); State v. Tuthill, 545 So.2d 850 (Fla. 1989); Lambert v. State, 545 So.2d 838 (Fla.1989); Branton v. State, 548 So.2d 882 (Fla. 5th DCA 1989). Accordingly, defendant’s sentence must be vacated and this matter remanded for resentencing.

Judgment AFFIRMED; sentence VACATED; case REMANDED for resentenc-ing.

COBB and SHARP, JJ., concur.

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DANIEL, Chief Judge.

Defendant David Burg has taken this appeal from his judgment and sentence which were imposed by the trial court after defendant pleaded guilty to violating his community control. The trial court, in imposing sentence on defendant, departed three cells upward and ordered defendant to serve a term of five years imprisonment. It was error for the trial court to impose this departure sentence because upon a violation of probation or community control the trial court must resentence defendant either within the original guidelines or within the permissive one cell upward increase ¹ — no further increase or departure is permitted for any reason. Franklin v. State, 545 So.2d 851 (Fla.1989). See also Dewberry v. State, 546 So.2d 409 (Fla.1989); State v. Tuthill, 545 So.2d 850 (Fla. 1989); Lambert v. State, 545 So.2d 838 (Fla.1989); Branton v. State, 548 So.2d 882 (Fla. 5th DCA 1989). Accordingly, defendant’s sentence must be vacated and this matter remanded for resentencing.

Judgment AFFIRMED; sentence VACATED; case REMANDED for resentenc-ing.

COBB and SHARP, JJ., concur.

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Bluebook (online)

550 So. 2d 1192, 14 Fla. L. Weekly 2545, 1989 Fla. App. LEXIS 6109, 1989 WL 129803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burg-v-state-fladistctapp-1989.

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