Opinion
No. 91-1566.
February 4, 1992.
Appeal from the Circuit Court, Monroe County, J. Jefferson Overby, J.
Bennett H. Brummer, Public Defender, and Rosa C. Figarola, and Howard Blumberg, Asst. Public Defenders, for appellant.
Robert A. Butterworth, Atty. Gen., and Consuelo Maingot, Asst. Atty. Gen., for appellee.
Before NESBITT, FERGUSON and GERSTEN, JJ.
Appellant, William De Leon appeals his sentence for violation of probation. We reverse.
Appellant pled guilty in two separate cases involving a charge of grand theft of an automobile. In exchange for his plea, appellant was sentenced to consecutive terms of probation in each case.
While released on probation, appellant was convicted of four more charges of grand theft. On sentencing for the violation of probation, appellant received a departure sentence. The trial court provided two reasons to justify the departure sentence:
(1) [S]ubsequent to the commission of this offense the defendant committed four new offenses in Dade County within 24 hours of his release on probation. The offenses were based upon conduct similar to the defendant's conduct in this case. (2) Each of the four subsequent convictions are not allowed to be scored on the guidelines scoresheet, and are therefore not involved in the calculation of the scoresheet in this case.
Convictions committed while a defendant was on probation, and which are the bases for a violation of probation, cannot also support a departure sentence in excess of a one-cell upward increase. Ree v. State, 565 So.2d 1329 (Fla. 1990); Lambert v. State, 545 So.2d 838 (Fla. 1989); see also Barfield v. State, 594 So.2d 259 (Fla. 1992). The same reasoning applies to this case. Accordingly, we reverse and remand for sentencing within the guidelines.
Reversed and remanded.
NESBITT and GERSTEN, JJ., concur.
I concur and write separately to add more facts.
De Leon was placed on probation for two counts of grand theft. The guideline scoresheet called for any nonstate prison sanction. When the probation was violated — on more grand theft charges — the trial court sentenced the defendant to concurrent terms of five years imprisonment — a two-cell departure from the one-cell enhancement permitted by the guidelines. As explained in the majority opinion, the court was limited to a one-cell increase. Ree v. State, 565 So.2d 1329 (Fla. 1990). Neither can the two-cell departure be sustained on a "temporal proximity" theory — which permits a greater departure where offenses are close in time — because the subsequent offenses were of no greater significance than the earlier episode. Lamoru v. State, 588 So.2d 686 (Fla. 3d DCA 1991).
The cause should be remanded for resentencing to a term which does not exceed a one-cell enhancement.