Jackson v. State

560 So. 2d 405, 1990 Fla. App. LEXIS 3012, 1990 WL 55982

Opinion

PER CURIAM.

Defendant was placed on community control for two years after pleading guilty to the offense of possession of a firearm by a convicted felon. Defendant’s community control was subsequently revoked.¹ Defendant was sentenced to 4¾⅛ years incarceration, followed by IOV2 years probation. Defendant’s sentencing guidelines score-sheet initially placed defendant in the second cell of community control or 12-30 months incarceration. With the one-cell “bump-up” for unsuccessful supervision, defendant could have been sentenced within the guidelines to 2¹/¾-3¹/2 years incarceration. Defendant’s 4½ year term of incarceration was described by the trial court as a two-cell “bump-up” resulting from defendant’s second violation of community control.²

The case law is well established that a trial court is limited to only a one-cell “bump-up” upon revocation of community control or probation. See Ree v. State, 14 F.L.W. 565 (Fla. Nov. 16, 1989); Franklin v. State, 545 So.2d 851 (Fla.1989); State v. Tuthill, 545 So.2d 850 (Fla.1989); Lambert v. State, 545 So.2d 838 (Fla.1989); Maddox v. State, 553 So.2d 1380 (Fla. 5th DCA 1989) (two violations of probation as to same offense do not justify departure sentence). The trial court’s two-cell “bump-up” was improper and constituted an unauthorized departure from the sentencing guidelines.

REVERSED AND REMANDED FOR RESENTENCING.

COBB, COWART and PETERSON, JJ., concur.

1 . Defendant pled guilty to violating his community control. The alleged violations were twofold; (1) Defendant consumed alcoholic beverages on May 31, 1988, and (2) defendant was not at his approved residence on May 31, 1988.

2 . Evidently, defendant’s community control was simply reinstated after his first violation.