Summary
reversing for correction of sentence and directing that defendant "does not have to be present for resentencing"
Summary of this case from McClendon v. StateOpinion
No. 84832.
October 12, 1995.
Application for Review of the Decision of the District Court of Appeal — Direct Conflict of Decisions, Fourth District — No. 93-3388 (Indian River County).
Richard L. Jorandby, Public Defender and Margaret Good-Earnest, Assistant Public Defender, Chief, Appellate Division, Fifteenth Judicial Circuit, West Palm Beach, for Petitioner.
Robert A. Butterworth, Attorney General; Joan Fowler, Senior Assistant Attorney General; and Melynda L. Melear and Sara B. Mayer, Assistant Attorneys General, West Palm Beach, for Respondent.
We have for review Sinks v. State, 646 So.2d 229 (Fla. 4th DCA 1994), in which the district court addressed the same question we recently answered in Gilyard v. State, 653 So.2d 1024 (Fla. 1995). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.
In accordance with our decision in Gilyard, we approve Sinks' sentence to the extent that it combines incarceration and community control because neither the recommended range nor the permitted range was phrased in the disjunctive. However, this sentence impermissibly exceeds a one-cell increase from the original guideline range cell. See Fla.R.Crim.P. 3.701(d)(14); Lambert v. State, 545 So.2d 838 (Fla. 1989). We therefore remand to the trial court to reduce the sentence by the amount it exceeds the next higher cell. Id. Sinks does not have to be present for resentencing.
It is so ordered.
GRIMES, C.J., and OVERTON, SHAW, KOGAN, HARDING, WELLS and ANSTEAD, JJ., concur.