Lockett v. State, 87-0976

• Decision Date: 02 December 1987
• Docket Number: No. 87-0976,87-0976
• Citation: Lockett v. State, 516 So.2d 46, 12 Fla. L. Weekly 2729 (Fla. App. 1987)
• Parties: 12 Fla. L. Weekly 2729 Anthony LOCKETT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 46

516 So.2d 46

12 Fla. L. Weekly 2729

Anthony LOCKETT, Appellant, v. STATE of Florida, Appellee.

No. 87-0976.

District Court of Appeal of Florida Fourth District.

Dec. 2, 1987.

Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Amy L. Diem, Asst. Atty. Gen., West Palm Beach, for appellee.

GLICKSTEIN, Judge.

Appellant was placed on one year community control on a charge of robbery. The sentencing guidelines recommended "any nonstate prison sanction" but the one year community control sentence was imposed by agreement between the defendant and the state pursuant to plea negotiations.

An affidavit of the defendant's violation of community control was filed; and after hearing, the trial court revoked the defendant's community control. A new sentencing guideline scoresheet recommended the same sentence--any nonstate prison sanction.

The trial court determined a one cell aggravation for violation of community control would allow a sentence in the 12 to 30 months range but decided to aggravate and impose a sentence of three years. The defendant objected to such sentence as an unlawful six months departure in aggravation from the guidelines. The court ruled that since appellant had agreed upon an aggravated sentence to begin with, it could aggravate more than one cell upon a violation of community control. This appeal followed. We reverse and remand for sentencing within the guidelines.

A review of the language of Florida Rule of Criminal Procedure 3.701(d)(14) clearly shows that sentences

imposed after revocation of probation or community control must be in accordance with the guidelines.

(Emphasis added.) If community control is violated, one may increase the sentence one bracket without giving clear and convincing reasons for the departure. Boldes v. State, 475 So.2d 1356 (Fla. 5th DCA 1985). In the instant case, the original guidelines range provided for "any nonstate prison sanction." The next higher guidelines range provided for "community control or 12-30 months incarceration." The trial court imposed a sentence two brackets up on the hierarchy of the guidelines presumptive sentence ranges--"3 years incarceration." It reasoned that this was necessary because the court would be "powerless" if the appellant were to violate a hypothetical sentence imposed within the community control or 12-30 months incarceration range...