Cahill v. State

478 So. 2d 376, 10 Fla. L. Weekly 2336, 1985 Fla. App. LEXIS 16234

Opinion

PER CURIAM.

The appellant challenges the revocation of his probation and the sentence imposed upon revocation. We reject the challenge to the revocation of probation, but agree with the defendant that he was improperly given a guidelines sentence.

The defendant was placed on probation for an offense committed on September 7, 1982. The record does not reflect that the defendant affirmatively selected to be sentenced under the guidelines. In the absence of such a selection, the sentencing guidelines may not be applied. Cahill v. State, 467 So.2d 366 (Fla. 2d DCA 1985).

Accordingly, we reverse and remand for resentencing. At resentencing the appellant may affirmatively select to be sentenced under the guidelines. If he does not, the trial judge must resentence him according to the law in effect prior to the adoption of the guidelines.

REVERSED AND REMANDED FOR RESENTENCING.

DANAHY, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.