Phillips v. State

550 So. 2d 1189, 14 Fla. L. Weekly 2546, 1989 Fla. App. LEXIS 6096, 1989 WL 129796

Opinion

PER CURIAM.

The defendant was sentenced on a drug charge after violating probation. The reason given for imposing a departure sentence was that the defendant violated his probation by selling drugs. Upon a violation of probation, the sentencing court may sentence the defendant only within a one cell upward increase from the original guideline range (Florida Rule of Criminal Procedure 3.701d.l4.) and factors relating to the violation of probation or community control cannot be used as grounds for departure from the recommended guideline sentence range. See, Franklin v. State, 545 So.2d 851 (Fla.1989); Lambert v. State, 545 So.2d 838 (Fla.1989). See also Dewberry v. State, 546 So.2d 409 (Fla.1989); Branton v. State, 548 So.2d 882 (Fla. 5th DCA 1989).

The departure sentence is vacated and the cause is remanded for resentencing.

SENTENCE VACATED; REMANDED.

COWART and GOSHORN, JJ., and HARRIS, Associate Judge, concur.