Mitchell v. State

549 So. 2d 780, 14 Fla. L. Weekly 2340, 1989 Fla. App. LEXIS 5413, 1989 WL 113867

Opinion

PER CURIAM.

Appellant was convicted of the crimes of sexual battery, robbery and petit theft. The offenses were committed while appellant was on community control for the unrelated crimes of two counts of theft. A petition alleging violation of community control for these unrelated crimes was not before the court for sentencing. Appellant argues it was error for the trial court to increase his guidelines sentencing range by one cell due to his being on community control for unrelated crimes at the time of the instant offenses, while at the same time scoring legal constraint on the scoresheet. We agree.

When a defendant is sentenced only for a crime committed while he was already on probation, points should be scored for legal constraint. However, the one-cell increase pursuant to Florida Rule of Criminal Procedure 3.701(d)(14) for violation of probation is inapplicable because there has been no revocation of probation. Peters v. State, 531 So.2d 121, 122 (Fla. 1988). We affirm the conviction but reverse and remand for resentencing within the guidelines and consistent with this opinion.

DOWNEY, STONE and POLEN, JJ., concur.