Opinion
No. 86-1887.
March 8, 1988.
An Appeal from the Circuit Court for Dade County; Thomas M. Carney, Judge.
Bennett H. Brummer, Public Defender and Karen M. Gottlieb and N. Joseph Durant, Jr., Asst. Public Defenders, for appellant.
Robert A. Butterworth, Atty. Gen. and Julie S. Thornton, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and HENDRY and NESBITT, JJ.
In this appeal from a judgment and sentence beyond the guidelines entered upon a revocation of probation, we find no error in the finding that Montgomery was in violation of his probation. The order revoking probation and resulting conviction are therefore affirmed. The departure sentence, however, is flawed both in the procedure through which it was imposed, Barbera v. State, 505 So.2d 413 (Fla. 1987), and by the fact that the grounds eventually assigned are insufficient. Saldana v. State, 510 So.2d 1238 (Fla. 3d DCA 1987). Since new grounds may not now be stated for deviation, Shull v. Dugger, 515 So.2d 748 (Fla. 1987); Harris v. State, 520 So.2d 688 (Fla. 3d DCA 1988), the cause is remanded for resentencing within the guidelines, as enhanced by the one cell increase authorized for a probation violation by Fla. R.Crim.P. 3.701(d)(14).
Affirmed in part, reversed in part.