VanKooten v. State

512 So. 2d 214

• Court: District Court of Appeal of Florida
• Decided: September 3, 1987
• Docket: 86-1420
• Status: Published

Opinion

512 So.2d 214 (1987)

Bruce Alan VanKOOTEN, Appellant,
v.
STATE of Florida, Appellee.

No. 86-1420.

District Court of Appeal of Florida, Fifth District.

July 9, 1987. On Motion for Rehearing September 3, 1987.

James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.

SHARP, Judge.

VanKooten pled guilty to burglary of a dwelling,^[1] and the state nolle prossed a grand theft charge.^[2] His guidelines scoresheet totaled sixty (60) points, yielding a presumptive guidelines sentence of "community control or twelve to thirty months incarceration." VanKooten was sentenced to thirty months incarceration, followed by two years community control, followed by ten and one-half years probation. This case is governed by our recent decision in Hankey v. State, 505 So.2d 701 (Fla. 5th DCA 1987).

Sentencing VanKooten to both community control and incarceration represents a departure from the sentencing guidelines which is improper absent written reasons for such departure. Therefore we vacate the sentence and remand for resentencing.

SENTENCE VACATED; REMANDED FOR RESENTENCING.

DAUKSCH and COWART, JJ., concur.

ON MOTION FOR REHEARING

Upon appellee's motion for rehearing, we amend our prior opinion by certifying a conflict with our sister court's opinion in Francis v. State, 487 So.2d 348 (Fla. 2d DCA 1986), review denied, 492 So.2d 1332 (Fla. 1986).

NOTES

[1] § 812.02, Fla. Stat. (1985).

[2] § 812.014, Fla. Stat. (1985).