DERRICK LOUIS EVANS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Derrick Evans appeals an upward departure sentence imposed after violation of probation. Although the upward departure sentence was permissible in 1987 when this sentence was imposed, State v. Pentaude, 500 So. 2d 526 (Fla.1987), the Florida Supreme Court receded from that decision in Lambert v. State, 545 So. 2d 838, 842 (Fla.1989); see also Ree v. State, 565 So. 2d 1329, 1331 (Fla.1989). As the present proceeding is a direct, albeit belated, appeal, defendant is entitled to decision in accordance with Lambert and Ree. See Junco v. State, 510 So. 2d 909, 913-14 (Fla. 3d DCA), review denied, 518 So. 2d 1276 (Fla.1987). Defendant must therefore be resentenced within the guidelines, that is, within the one-cell increase above the recommended range.*
Reversed and remanded for resentencing.
*
As the crimes for which defendant was on probation were committed in 1986 prior to the creation of the permitted range, the one-cell increase must be based on the recommended range, rather than the permitted range. See Irizarry v. State, 578 So. 2d 711 (Fla. 3d DCA 1991) (rehearing opinion).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gilbert v. State, 667 So. 2d 969 (Fla. 4th DCA 1996)…llate courts decide the case in accordance with the law as it exists at the time of the appellate decision. Florida Patient’s Compensation Fund v. Von Stetina, 474 So. 2d 783 (Fla.1985). This rule has been applied to belated appeals. Evans v. State, 582 So. 2d 122 (Fla. 3d DCA 1991); Junco v. State, 510 So. 2d 909 (Fla. 3d DCA), rev. denied, 518 So. 2d 1276 (Fla.1987). While we question its propriety in cases of a belated appeal, especially one which is not brought until after the favorable case law change ha…
Authorities Cited
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- State v. Pentaude, 500 So. 2d 526 (Fla. 1987)
- Americo Junco and Ernesto R. Esquivel v. State, 510 So. 2d 909 (Fla. 3d DCA 1987)
- Irizarry v. State, 578 So. 2d 711 (Fla. 3d DCA 1990)