Stooksbury v. State

Full title: JOSEPH HARLIN STOOKSBURY, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Third District

Date published: Oct 7, 1986

495 So. 2d 845 (Fla. Dist. Ct. App. 1986)

Opinion

No. 85-2673.

October 7, 1986.

Appeal from the Circuit Court, Monroe County, David P. Kirwan, J.

Bennett H. Brummer, Public Defender, Marti Rothenberg, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., Susan Odzer Hugentugler, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and HUBBART and DANIEL S. PEARSON, JJ.

PER CURIAM.

Where, as here, the presumptive sentence established by the sentencing guidelines included a "nonstate prison sanction," and thus the permissible alternative of incarceration in the county jail, the trial court's conclusion that the defendant was "an unsuitable candidate to be placed on probation again" is not a clear and convincing reason to deviate from the guidelines. Heston v. State, 490 So.2d 157 (Fla. 2d DCA 1986); Montgomery v. State, 489 So.2d 1225 (Fla. 5th DCA 1986). Accordingly, the defendant's sentence is reversed and the cause remanded for sentencing within the guidelines.

Reversed and remanded.