Kelly v. State

461 So. 2d 192, 9 Fla. L. Weekly 2595, 1984 Fla. App. LEXIS 16082

Opinion

DELL, Judge.

We grant the Public Defender’s motion to withdraw, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and affirm appellant’s convictions. We note that the trial court departed from the presumptive sentence when it imposed a two year sentence based on the violation of probation and failed to provide written reasons for the departure. Although Florida Rule of Criminal Procedure 3.701 was amended to provide that no reason need be given for increasing the presumptive sentence under the guidelines to the next higher cell by reason of revocation of probation, the amendment was not adopted until after appellant’s sentencing. See Carter v. State, 452 So.2d 953, 954 n.3 (Fla. 5th DCA 1984). Because this issue was not adequately preserved for appellate review, we affirm appellant’s convictions and sentences. However, we do so without prejudice to appellant to challenge the sentence imposed by the trial court based on the revocation of probation pursuant to a mo-ti°n in compliance with Florida Rule of Criminal Procedure 3.850.

HURLEY and BARKETT, JJ., concur.