Foster v. State

District Court of Appeal of Florida

Foster v. State

491 So. 2d 328, 11 Fla. L. Weekly 1549, 1986 Fla. App. LEXIS 8772

District Court of Appeal of Florida·Decided July 15, 1986·No. No. BF-75·Published·Cited by 2 cases

Opinion

NIMMONS, Judge.

This is an appeal from the trial court’s imposition of consecutive sentences which departed from the sentencing guidelines. We reverse and remand for resentencing.

Appellant pled guilty to two counts of issuing worthless checks and received one year of probation. Thereafter, appellant violated his probation and was sentenced to thirty months incarceration on each count to run consecutively for a total of sixty months. The recommended guidelines sentence was twelve to thirty months.

It is well-established that while a separate sentence must be imposed for each offense, the total sentence cannot exceed the total guidelines sentence unless a written reason for departure is given. White v. State, 489 So.2d 115 (Fla. 1st DCA 1986); Carter v. State, 483 So.2d 740 (Fla. 5th DCA 1986); Fla.R.Crim.P. 3.701(d)(12). In the present case, no written reason for departure was given by the trial judge.

Accordingly, the sentences are vacated and the cause is remanded for resentencing in accordance with the sentencing guidelines unless a clear and convincing reason for departure is stated in writing. Fla.R. Crim.P. 3.701(d)(ll).

MILLS and WENTWORTH, JJ., concur.

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NIMMONS, Judge.

This is an appeal from the trial court’s imposition of consecutive sentences which departed from the sentencing guidelines. We reverse and remand for resentencing.

Appellant pled guilty to two counts of issuing worthless checks and received one year of probation. Thereafter, appellant violated his probation and was sentenced to thirty months incarceration on each count to run consecutively for a total of sixty months. The recommended guidelines sentence was twelve to thirty months.

It is well-established that while a separate sentence must be imposed for each offense, the total sentence cannot exceed the total guidelines sentence unless a written reason for departure is given. White v. State, 489 So.2d 115 (Fla. 1st DCA 1986); Carter v. State, 483 So.2d 740 (Fla. 5th DCA 1986); Fla.R.Crim.P. 3.701(d)(12). In the present case, no written reason for departure was given by the trial judge.

Accordingly, the sentences are vacated and the cause is remanded for resentencing in accordance with the sentencing guidelines unless a clear and convincing reason for departure is stated in writing. Fla.R. Crim.P. 3.701(d)(ll).

MILLS and WENTWORTH, JJ., concur.

Foster v. State, 491 So. 2d 328, 11 Fla. L. Weekly 1549, 1986 Fla. App. LEXIS 8772 (Fla. Ct. App. 1986).

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Opinion

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