Foister v. State

BARFIELD, Judge,

dissenting:

This case is before the court for the second time to determine the propriety of the sentence imposed by the trial court. In Foister v. State, 510 So.2d 371 (Fla. 1st DCA 1987), this court found the reasons given for departure to be invalid and ordered the trial court to sentence the defendant within the guidelines. The maximum guidelines sentence is 5V2 years. It is my opinion that the sentence imposed, 5V2 years of incarceration to be followed by 5 additional years of probation, constitutes another départure sentence. Although the supreme court has now approved a new form of criminal disposition called “probationary split sentence” in Poore v. State, 531 So.2d 161 (Fla.1988), I do not believe that opinion would support a holding that the additional criminal disposition of probation on top of a maximum guidelines sentence constitutes a sentence within the guideline range.

The sentence imposed in this case is both a departure sentence and one in violation of the mandate of this court.