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505 So. 2d 701

505 So.2d 701

12 Fla.L.Weekly 1088

Docket No. 86-1586.

Hankey v. State

Thomas Raymond HANKEY, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided April 23, 1987.

District Court of Appeal of Florida · decided 1987-04-23

Cited by 23 later decisions — most recently July 1991

23 state decisions

Key passage — most relied on by later courts

“[i]n this particular bracket it is clear that the presumptive sentence could only be either community control of 12 to 30 months incarceration. If incarceration was imposed, there could be no community control, based on the language of the guidelines. Similarly, the court could not have imposed incarceration time if it elected community control.”

quoted by 3 later decisions, including 517 So. 2d 782 - Bodine v. State, 528 So. 2d 434 - Gulker v. State

“community control or 12 to 30 months incarceration,”

quoted by 1 later decision, including 526 So. 2d 1029 - Ewing v. State

Relies on 478 So. 2d 1054 - State v. Jackson

Good law ✅— No negative treatment on recordhow we know

Decided 1987-04-23

View the full empirical analysis of this case →

¶1James B. Gibson, Public Defender and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.

¶2James A. Butterworth, Atty. Gen., Tallahassee and Ellen D. Phillips, Asst. Atty. Gen., Daytona Beach, for appellee.

¶3SHARP, Judge.

¶4Hankey was resentenced to thirty months incarceration, followed by two years community control, followed by five years probation. He had been convicted of burglary of a dwelling[1] and burglary of a structure.[2] The presumptive guideline sentence based on Hankey's 48 point count was "community control or 12 to 30 months incarceration," the second bracket of the category 5 scoresheet. Because no written reasons for a departure sentence were given, we vacate the sentence.

¶5In this particular bracket it is clear that the presumptive sentence could only be either community control or 12 to 30 months incarceration. If incarceration was imposed, there could be no community control, based on the language of the guidelines. Similarly, the court could not have imposed incarceration time if it elected community control.

¶6Accordingly, Hankey's sentence departed upward from the guidelines presumptive sentence. Since the trial judge failed to give any written reasons for aggravating Hankey's punishment, we must vacate the sentence and remand for resentencing. State v. Jackson,478 So.2d 1054 (Fla. 1985).

¶7VACATE SENTENCE; REMAND.

¶8UPCHURCH, C.J., and COWART, J., concur.

NOTES

¶9[1] § 810.02(3), Fla. Stat. (1983).

¶10[2] § 810.02(1), Fla. Stat. (1983).

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