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Hankey v. State

District Court of Appeal of Florida, Fifth District
Apr 23, 1987
505 So. 2d 701 (Fla. Dist. Ct. App. 1987)
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Summary

In Hankey v. State, 505 So.2d 701 (Fla. 5th DCA 1987), rev. denied, 515 So.2d 230 (Fla. 1987), and in VanKooten v. State, 512 So.2d 214 (Fla. 5th DCA 1987), this court held that when the recommended guideline range was community control or 12-30 months' incarceration, the imposition of 30 months' incarceration and community control constitutes a departure sentence, and certified conflict with Francis. The supreme court in State v. VanKooten, 522 So.2d 830 (Fla. 1988) approved VanKooten and disapproved Francis.

Summary of this case from Hankey v. State
See 2 Summaries

Opinion

No. 86-1586.

April 23, 1987.

James B. Gibson, Public Defender and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.

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

SHARP, Judge.

Hankey was resentenced to thirty months incarceration, followed by two years community control, followed by five years probation. He had been convicted of burglary of a dwelling and burglary of a structure. The presumptive guideline sentence based on Hankey's 48 point count was "community control or 12 to 30 months incarceration," the second bracket of the category 5 scoresheet. Because no written reasons for a departure sentence were given, we vacate the sentence.

In this particular bracket it is clear that the presumptive sentence could only be either community control or 12 to 30 months incarceration. If incarceration was imposed, there could be no community control, based on the language of the guidelines. Similarly, the court could not have imposed incarceration time if it elected community control.

Accordingly, Hankey's sentence departed upward from the guidelines presumptive sentence. Since the trial judge failed to give any written reasons for aggravating Hankey's punishment, we must vacate the sentence and remand for resentencing. State v. Jackson, 478 So.2d 1054 (Fla. 1985).

VACATE SENTENCE; REMAND.

UPCHURCH, C.J., and COWART, J., concur.

Summaries of

Hankey v. State

District Court of Appeal of Florida, Fifth District
Apr 23, 1987
505 So. 2d 701 (Fla. Dist. Ct. App. 1987)

In Hankey v. State, 505 So.2d 701 (Fla. 5th DCA 1987), rev. denied, 515 So.2d 230 (Fla. 1987), and in VanKooten v. State, 512 So.2d 214 (Fla. 5th DCA 1987), this court held that when the recommended guideline range was community control or 12-30 months' incarceration, the imposition of 30 months' incarceration and community control constitutes a departure sentence, and certified conflict with Francis. The supreme court in State v. VanKooten, 522 So.2d 830 (Fla. 1988) approved VanKooten and disapproved Francis.

Summary of this case from Hankey v. State

In Hankey v. State, 505 So.2d 701 (Fla. 5th DCA), rev. denied, 515 So.2d 230 (Fla. 1987) and in VanKooten v. State, 512 So.2d 214 (Fla. 5th DCA 1987), this court held that when the recommended guideline range was community control or 12-30 months' incarceration, the imposition of 30 months' incarceration and community control constituted a departure sentence and certified conflict with Francis. The supreme court in State v. VanKooten, 522 So.2d 830 (Fla. 1988) approved VanKooten and disapproved Francis.

Summary of this case from Gulker v. State
Case details for

Hankey v. State

Case Details

Full title:THOMAS RAYMOND HANKEY, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fifth District

Date published: Apr 23, 1987

Citations

505 So. 2d 701 (Fla. Dist. Ct. App. 1987)

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