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Burg v. State

District Court of Appeal of Florida, Fifth District
Nov 2, 1989
550 So. 2d 1192 (Fla. Dist. Ct. App. 1989)

Opinion

No. 88-2319.

November 2, 1989.

Appeal from the Circuit Court, Marion County, Raymond T. McNeal, J.

James B. Gibson, Public Defender, and Glen P. Gifford, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and David S. Morgan, Asst. Atty. Gen., Daytona Beach, for appellee.


Defendant David Burg has taken this appeal from his judgment and sentence which were imposed by the trial court after defendant pleaded guilty to violating his community control. The trial court, in imposing sentence on defendant, departed three cells upward and ordered defendant to serve a term of five years imprisonment. It was error for the trial court to impose this departure sentence because upon a violation of probation or community control the trial court must resentence defendant either within the original guidelines or within the permissive one cell upward increase — no further increase or departure is permitted for any reason. Franklin v. State, 545 So.2d 851 (Fla. 1989). See also Dewberry v. State, 546 So.2d 409 (Fla. 1989); State v. Tuthill, 545 So.2d 850 (Fla. 1989); Lambert v. State, 545 So.2d 838 (Fla. 1989); Branton v. State, 548 So.2d 882 (Fla. 5th DCA 1989). Accordingly, defendant's sentence must be vacated and this matter remanded for resentencing.

Judgment AFFIRMED; sentence VACATED; case REMANDED for resentencing.

COBB and SHARP, JJ., concur.


Summaries of

Burg v. State

District Court of Appeal of Florida, Fifth District
Nov 2, 1989
550 So. 2d 1192 (Fla. Dist. Ct. App. 1989)
Case details for

Burg v. State

Case Details

Full title:DAVID BURG, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fifth District

Date published: Nov 2, 1989

Citations

550 So. 2d 1192 (Fla. Dist. Ct. App. 1989)

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