Herrschaft v. State

¶1Defendant appeals his convictions for battery on a police officer and resisting arrest with violence. We affirm his convictions but reverse the sentence, as the State agrees we should, because the court sentenced defendant to a combination of both incarceration and community control, and the guidelines *1124specify incarceration or community control. State v. Davis, 630 So.2d 1059 (Fla.1994). We therefore remand for resentencing. We agree with the defendant that the court can consider a departure sentence because it is obvious that the court was not aware it was imposing a departure sentence. State v. Betancourt, 552 So.2d 1107 (Fla.1989).