McAfee v. State

District Court of Appeal of Florida

McAfee v. State

782 So. 2d 1023, 2001 Fla. App. LEXIS 5730, 2001 WL 427329

CourtDistrict Court of Appeal of Florida

DecidedApril 27, 2001

DocketNos. 5D00-1355, 5D00-1411

StatusPublished

This text of 782 So. 2d 1023 (McAfee v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McAfee v. State, 782 So. 2d 1023, 2001 Fla. App. LEXIS 5730, 2001 WL 427329 (Fla. Ct. App. 2001).

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Opinion

ORFINGER, R.B., J.

Ruben James McAfee appeals the sentences imposed after this court remanded this matter for resentencing following an earlier appeal. McAfee v. State, 745 So.2d 590 (Fla. 5th DCA 1999). As directed by this court, the trial judge utilized one sen-fencing scoresheet for both of McAfee’s offenses and sentenced McAfee to 34 months of incarceration, even though the maximum sentence permitted under the guidelines without an upward departure was 22.5 months. This was error.

The sentences imposed on McAfee exceeded the maximum permissible guideline sentence.¹ Florida Rule of Criminal Procedure 3.701(d)(12) provides that “the total sentence cannot exceed the total guideline sentence unless a written reason is given.” See Joyce v. State, 466 So.2d 433 (Fla. 5th DCA 1985). No written (or oral) reason for departure was given by the trial court to justify an upward departure. Consequently, the sentences imposed were improper.

We find no merit in the other issues raised by McAfee. We vacate the sentences and remand the matter for imposition of a guideline sentence.² See Pope v. State, 561 So.2d 554 (Fla.1990).

REVERSED AND REMANDED.'

THOMPSON, C.J., and PLEUS, J„ concur.

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ORFINGER, R.B., J.

Ruben James McAfee appeals the sentences imposed after this court remanded this matter for resentencing following an earlier appeal. McAfee v. State, 745 So.2d 590 (Fla. 5th DCA 1999). As directed by this court, the trial judge utilized one sen-fencing scoresheet for both of McAfee’s offenses and sentenced McAfee to 34 months of incarceration, even though the maximum sentence permitted under the guidelines without an upward departure was 22.5 months. This was error.

The sentences imposed on McAfee exceeded the maximum permissible guideline sentence.¹ Florida Rule of Criminal Procedure 3.701(d)(12) provides that “the total sentence cannot exceed the total guideline sentence unless a written reason is given.” See Joyce v. State, 466 So.2d 433 (Fla. 5th DCA 1985). No written (or oral) reason for departure was given by the trial court to justify an upward departure. Consequently, the sentences imposed were improper.

We find no merit in the other issues raised by McAfee. We vacate the sentences and remand the matter for imposition of a guideline sentence.² See Pope v. State, 561 So.2d 554 (Fla.1990).

REVERSED AND REMANDED.'

THOMPSON, C.J., and PLEUS, J„ concur.

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782 So. 2d 1023, 2001 Fla. App. LEXIS 5730, 2001 WL 427329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcafee-v-state-fladistctapp-2001.

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