THOMPSON v. STATE, 707 So.2d 1191 (Fla.App. 4 Dist. 1998)

Case No. 96-2862.District Court of Appeal of Florida, Fourth District.
Opinion filed April 1, 1998.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; James I. Cohn, Judge; L.T. Case No. 96-7104 CF10.

Richard L. Jorandby, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, West Palm Beach, for appellee.

FARMER, J.

A 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 scoresheet, however, showed a recommended sentence of 63.2 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.

We 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. Myers
requires that we reverse the sentence in this case and remand with instructions to resentence defendant to the sentence recommended by the guidelines scoresheet. As we did i 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, 23 Fla. L. Weekly D651(Fla. 1st DCA Feb. 26, 1998).

REVERSED AND REMANDED FOR RESENTENCING TO SENTENCE RECOMMENDED UNDER GUIDELINES.

DELL and SHAHOOD, JJ., concur.