Primm v. State, 87-2640
| Decision Date | 27 April 1988 |
| Docket Number | No. 87-2640,87-2640 |
| Citation | 13 Fla. L. Weekly 1050,524 So.2d 475 |
| Court | Florida District Court of Appeals |
| Parties | 13 Fla. L. Weekly 1050 David Earl PRIMM, Appellant, v. STATE of Florida, Appellee. |
James Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
David Primm appeals from his sentence for battery on a correctional officer. He argues that the trial court erred in exceeding the guidelines sentence without filing written reasons for departure. We agree and remand for resentencing within the guidelines.
The appellant's score fell into the second cell range of two and one-half to three and one-half years in prison. He was sentenced to three and one-half years in prison and one and a half years' community control. He argues that this split sentence is a departure from the guidelines and that the trial court did not support the departure with written reasons. The state argues that a split sentence of incarceration and community control is a legal sentence not requiring written reasons for departure under Francis v. State, 487 So.2d 348 (Fla. 2d DCA 1986). In Francis this court held that as long as the incarcerative portion of the sentence is within the recommended guidelines range and the total sanction is within the statutory limit, the sentence is not a departure sentence and written reasons are not necessary.
The Florida Supreme Court recently disapproved Francis in State v. Van Kooten, 522 So.2d 830 (Fla.1988), and held that when the presumptive guidelines sentence calls for community control or incarceration, the imposition of both sanctions represents a departure sentence and requires clear and convincing reasons for the departure. Since the appellant's split sentence totals five years, it is a departure from the recommended sentence. Because the sentence is unsupported by written reasons, this case must be remanded for resentencing within the guidelines.
We find no merit in the appellant's remaining point on appeal.
Reversed and remanded for proceedings consistent with this opinion.
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Hankey v. State, 87-1854
...The supreme court in State v. VanKooten, 522 So.2d 830 (Fla.1988) approved VanKooten and disapproved Francis. In Primm v. State, 524 So.2d 475 (Fla. 2d DCA 1988), the recommended guideline sentence was 2 1/2-3 1/2 years' incarceration, and the sentence imposed was 3 1/2 years in prison and ......
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Moreno v. State, 87-1930
...DCA 1988). In order to accomplish an equal application of the law, this court should express its direct conflict with Primm v. State, 524 So.2d 475 (Fla. 2d DCA 1988), VanKooten v. State, 512 So.2d 214 (Fla. 5th DCA 1987), approved, 522 So.2d 830 (Fla.1988), Hankey v. State, 505 So.2d 701 (......
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Soard v. State, 87-2292
...512 So.2d 214 (Fla. 5th DCA 1987), approved, 522 So.2d 830 (Fla.1988). As explained by the Second District Court in Primm v. State, 524 So.2d 475 (Fla. 2d DCA 1988), under Hankey and VanKooten, the sentence in this case constitutes a departure sentence. See also the dissents in Williams v. ......
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Williams v. State
...constitutes a departure from the maximum recommended guidelines sentence. The Second District Court of Appeal in Primm v. State, 524 So.2d 475 (Fla. 2d DCA 1988) recognizes both this and that the principle in Hankey v. State, 505 So.2d 701 (Fla. 5th DCA 1987), rev. denied, 515 So.2d 230 (Fl......