Rushing v. State

Full title: ANDREW RUSHING, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Fifth District

Date published: May 24, 1990

561 So. 2d 36 (Fla. Dist. Ct. App. 1990)

Opinion

No. 89-840.

May 24, 1990.

Appeal from the Circuit Court for Volusia County; John W. Watson, III, Judge.

James B. Gibson, Public Defender, and Barbara L. Condon, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Fleming Lee; Asst. Atty. Gen., Daytona Beach, for appellee.

GRIFFIN, Judge.

This is an appeal of a guidelines departure sentence in a probation violation case. The sentence imposed exceeded the one-bracket bump-up permitted in probation violation cases.

The case law in Florida has now established that a trial court cannot exceed a one-cell "bump-up" upon revocation of probation. Franklin v. State, 545 So.2d 851 (Fla. 1989); State v. Tuthill, 545 So.2d 850 (Fla. 1989); Lambert v. State, 545 So.2d 838 (Fla. 1989); Maddox v. State, 553 So.2d 1380 (Fla. 5th DCA 1989).

SENTENCE VACATED; REMANDED for resentencing.

DANIEL, C.J., and DAUKSCH, J., concur.