Chisholm v. State

667 So. 2d 1010, 1996 Fla. App. LEXIS 1383, 1996 WL 61367

Opinion

PER CURIAM.

Appellant’s sentence to six years in prison, in case no. 93-462, exceeds the guidelines-permitted range of two and one-half to five and one-half years incarceration. At sentencing, the court and all the parties were under the mistaken impression that the range under the scoresheet was three and one-half to seven years.

Although Appellant acknowledged at sentencing that he was facing a potential seven year sentence, this cannot be construed as acquiescence to the higher grid where neither he nor the court understood that the sentence to be imposed was a guidelines departure. See Calleja v. State, 562 So.2d 395 (Fla. 5th DCA 1990).

We therefore reverse the sentence and remand for resentencing. On remand, the trial court may consider a departure sentence. State v. Betancourt, 552 So.2d 1107 (Fla.1989).

GUNTHER, C.J., and STONE and GROSS, JJ., concur.