Thompson v. State

¶1A jury convicted defendant of possession of cocaine, a third degree felony. The penalty statute provides a maximum sentence for this conviction of 5 years.1 His-sentencing score-sheet, however, showed a recommended sentence of 68.2 months. The trial judge enhanced the recommended sentence within the guidelines range of 25% and sentenced him to 79 months in prison. This appeal follows.

¶2We decided the issue raised in this appeal in our previous decision in Myers v. State, 696 So.2d 893 (Fla. 4th DCA), rev. granted, 703 So.2d 477 (Fla.1997). There we held that the court may not enhance a recommended sentence that already exceeds the maximum set by the penalty statute by a further extension within the guidelines range. Myersrequires that we reverse the sentence in this case and remand with instructions to resen-tence defendant to the sentence recommended by the guidelines seoresheet. As we did in Myers, we certify conflict with Mays v. State, 693 So.2d 52 (Fla. 5th DCA), rev. granted, 700 So.2d 686 (Fla.1997); Martinez v. State, 692 So.2d 199 (Fla. 3d DCA), rev. dismissed, 697 So.2d 1217 (Fla.1997); and Green v. State, 691 So.2d 502 (Fla. 5th DCA), rev. granted 699 So.2d 1373 (Fla.1997); and with the subsequently issued decision in Floyd v. State, 707 So.2d 833 (Fla. 1st DCA 1998).

¶3REVERSED AND REMANDED FOR RESENTENCING TO SENTENCE RECOMMENDED UNDER GUIDELINES.