Mitchell v. State

554 So. 2d 572, 1989 Fla. App. LEXIS 7140, 1989 WL 153709

Opinion

PER CURIAM.

Joseph Mitchell was charged with violating his community control by possessing cocaine, by failing to answer inquiries truthfully, by failing to seek employment as instructed, by failing to remain at his residence at a required time, and by making two sales of crack cocaine. Mitchell’s scoresheet, including a one-cell upward departure, placed him in the recommended range of twelve to thirty months’ incarceration. The trial judge sentenced Mitchell to five years imprisonment, citing as his reasons Mitchell’s short time on community control, continued involvement with drugs and escalating pattern of criminal activity. Mitchell appeals; we reverse.

Upon violation of community control, the sentencing court may resentence defendant only within a one-cell increase, Fla.R. Crim.P. 3.701(d)(14); reasons relating to the violation of community control may not be used to support any additional departure. Hamilton v. State, 548 So.2d 234 (Fla.1989); Perez v. State, 554 So.2d 14 (Fla. 3d DCA 1989); Hunnicutt v. State, 549 So.2d 1138 (Fla. 3d DCA 1989); Crawford v. State, 549 So.2d 1145 (Fla. 3d DCA 1989); Hamilton v. State, 547 So.2d 305 (Fla. 3d DCA 1989); Burg v. State, 550 So.2d 1192 (Fla. 5th DCA 1989); Kramer v. State, 550 So.2d 557 (Fla. 5th DCA 1989).

Reversed and remanded for resentenc-ing.