Brown v. State

Full title: KENNETH BROWN, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Fifth District

Date published: Jul 29, 1994

639 So. 2d 1136 (Fla. Dist. Ct. App. 1994)

Opinion

No. 93-2414.

July 29, 1994.

Appeal from the Circuit Court for Orange County; Belvin Perry, Jr., Judge.

James B. Gibson, Public Defender, and James T. Cook, Asst. Public Defender, Daytona Beach, for appellant.

Kenneth Brown, pro se.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Barbara Arlene Fink, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

The appellant received a penalty combining community control and incarceration, an unauthorized departure from the second cell of the sentencing guidelines scoresheet. State v. Davis, 630 So.2d 1059 (Fla. 1994). We vacate the sentence and remand for resentencing.

Because it does not appear from the record that such a departure was intended when the sentence was initially imposed, the trial court on remand may depart from the guidelines upon providing valid written reasons. See State v. Vanhorn, 561 So.2d 584 (Fla. 1990); State v. Betancourt, 552 So.2d 1107 (Fla. 1989); Dyer v. State, 534 So.2d 843 (Fla. 5th DCA 1988).

SENTENCE VACATED; REMANDED.

COBB, PETERSON and THOMPSON, JJ., concur.