Lamb v. State

552 So. 2d 350, 14 Fla. L. Weekly 2712, 1989 Fla. App. LEXIS 6440, 1989 WL 139523

Opinion

PER CURIAM.

The defendant pled guilty to violating his probation in two separate cases. The recommended guideline sentence was any non-state prison sanction. The trial court departed and sentenced the defendant to five years’ incarceration for each case, to be served concurrently. The trial court’s reason for the departure was that this was the second time the defendant had violated his probation by committing a substantive offense within eight months of being placed under supervision.

Upon a violation of probation, the sentencing court may sentence the defendant only within a one cell upward increase from the original guideline range and factors relating to the violation of probation cannot be used as grounds to depart. See Franklin v. State, 545 So.2d 851 (Fla.1989); Lambert v. State, 545 So.2d 838 (Fla.1989). The trial court did not have the benefit of these decisions when sentencing the defendant.

The departure sentences are vacated and the cause is remanded for resentencing.

SENTENCES VACATED; REMANDED.

DANIEL, C.J., and COBB and GOSHORN, JJ., concur.