Mickens v. State, No. 89-488

No. 89-488 | Fla. Dist. Ct. App. | Sep 12, 1990

Rehearing

ON MOTION FOR REHEARING

NIMMONS, Judge.

By his motion for rehearing, appellant draws our attention to his third issue wherein he contended that the trial court erred in imposing a probationary term following the sentence of incarceration, thus violating his constitutional right against double jeopardy. Although recognizing that this same contention has heretofore been rejected in Glass v. State, 556 So. 2d 465" court="Fla. Dist. Ct. App." date_filed="1990-01-31" href="https://app.midpage.ai/document/glass-v-state-1149249?utm_source=webapp" opinion_id="1149249">556 So.2d 465 (Fla. 1st DCA 1990), appellant’s motion for rehearing calls to our attention that we have, in Glass as well as in Betsey v. State, 558 So. 2d 202" court="Fla. Dist. Ct. App." date_filed="1990-03-21" href="https://app.midpage.ai/document/betsey-v-state-1824094?utm_source=webapp" opinion_id="1824094">558 So.2d 202 (Fla. 1st DCA 1990), and Buckley v. State, 558 So. 2d 534" court="Fla. Dist. Ct. App." date_filed="1990-03-29" href="https://app.midpage.ai/document/smith-v-state-1823911?utm_source=webapp" opinion_id="1823911">558 So.2d 534 (Fla. 1st DCA 1990), certified the following question:

DOES A DOUBLE JEOPARDY VIOLATION RESULT FROM THE IMPOSITION OF A PROBATIONARY SPLIT SENTENCE WHEN THE LEGISLATURE HAS NOT EXPLICITLY AUTHORIZED THAT DISPOSITION IN THE SENTENCE ALTERNATIVES OF SECTION 921.187, FLORIDA STATUTES?

We hereby certify that same question to the Florida Supreme Court as a question of great public importance.

The motion for rehearing is otherwise denied.

WIGGINTON and ZEHMER, JJ., concur.

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Lead Opinion

PER CURIAM.

Appellant appeals from the trial court’s revocation of his community control in his three felony cases and from the subsequent sentences imposed therein.

Affidavits charging the appellant with violation of his community control were filed in only two of the three cases. No such affidavit was filed in Case No. 85-2115 (the lower court docket number). Accordingly, we reverse and remand as to the revocation and sentence imposed in Case No. 85-2115, with directions that the sentence in such ease be vacated and set aside.

Also, inasmuch as there is no sentencing guidelines scoresheet of record, and we are therefore unable to determine what, if any, impact the reversal as to 85-2115 may have on the guidelines range applicable to the remaining two offenses, we remand for the preparation of a guidelines scoresheet and for possible resentencing in the two other cases, as may be required by such score-sheet.

We have examined the remaining issues raised by appellant and find them to be without merit.

Reversed in part, affirmed in part and remanded.

WIGGINTON, NIMMONS and ZEHMER, JJ., concur.