Filmore v. State

• Decision Date: 28 January 1988
• Docket Number: No. 87-194,87-194
• Parties: 13 Fla. L. Weekly 287 Donald D. FILMORE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 73

519 So.2d 73

13 Fla. L. Weekly 287

Donald D. FILMORE, Appellant, v. STATE of Florida, Appellee.

No. 87-194.

District Court of Appeal of Florida,

Fifth District.

Jan. 28, 1988.

James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Ellen D. Phillips, Asst. Atty. Gen., Daytona Beach, for appellee.

ON MOTION FOR REHEARING

DAUKSCH, Judge.

Upon consideration of the Motion for Rehearing, we withdraw the prior decision in this case and substitute the following opinion.

The defendant pled guilty to violating community control and appeared for sentencing. The trial court departed from the guidelines for the sole reason that:

The defendant previously served 3 yrs. in D.O.C. on this charge. To stay within the guidelines would require that no sentence be imposed for his violation of probation.

The defendant timely appeals his departure sentence.

A trial court can depart beyond the next cell for a violation of probation if there are clear and convincing reasons. State v. Pentaude, 500 So.2d 526 (Fla.1987) (defendant violated seven conditions of probation within months of release and was convicted of a substantive crime while on probation). However, it is error to depart beyond one cell upwards for the sole reason that a defendant would serve no prison time unless a greater departure is imposed. Bryant v. State, 513 So.2d 1362 (Fla.5th DCA 1987). Therefore, the defendant's sentence is vacated and this case is remanded for resentencing.

SENTENCE VACATED and REMANDED.

COBB and COWART, JJ., concur.