State v. Brendell

656 So. 2d 594, 1995 Fla. App. LEXIS 6915, 1995 WL 370807

Opinion

DAUKSCH, Judge.

This is an appeal from a sentence.

Appellant was convicted of robbery with a firearm and sentenced to a suspended seven-year term in prison, with the proviso that if she successfully completes two years community control and five years probation she would not have to go to prison.

We vacate the sentence and remand this case for a proper guideline sentence. First, she must be given the three-year mandatory minimum incarceration for the use of a firearm. See § 775.087(2)(a)1., Fla.Stat. (1993); State v. Ross, 447 So.2d 1380 (Fla. 4th DCA), rev. den., 456 So.2d 1182 (Fla.1984). See also State v. McKendry, 614 So.2d 1158 (Fla. 4th DCA), rev. granted, 624 So.2d 267 (Fla.1993), approved, 641 So.2d 45 (Fla.1994). Second, the innovative sentence is violative of Poore v. State, 531 So.2d 161 (Fla.1988), State v. Conte, 650 So.2d 192 (Fla. 5th DCA 1995) and State v. Manning, 605 So.2d 508 (Fla. 5th DCA 1992). Third, the reasons for downward departure are ambiguous. See Knowles v. State, 654 So.2d 592 (Fla. 1st DCA 1995); Cookston v. State, 639 So.2d 100 (Fla. 5th DCA), rev. den., 649 So.2d 232 (Fla.1994).

Sentence VACATED; REMANDED for resentencing and clarification.

COBB and W. SHARP, JJ., concur.