Florida District Courts of Appeal, 1994

Herrschaft v. State

Herrschaft v. State
Florida District Courts of Appeal · Decided December 7, 1994 · Hersey, Klein, Stone
645 So. 2d 1123; 1994 Fla. App. LEXIS 11892; 1994 WL 685942 (Southern Reporter, Second Series)

Herrschaft v. State

Opinion of the Court

PER CURIAM.

Defendant appeals his convictions for battery on a police officer and resisting arrest with violence. We affirm his convictions but reverse the sentence, as the State agrees we should, because the court sentenced defendant to a combination of both incarceration and community control, and the guidelines *1124specify incarceration or community control. State v. Davis, 630 So.2d 1059 (Fla. 1994). We therefore remand for resentencing. We agree with the defendant that the court can consider a departure sentence because it is obvious that the court was not aware it was imposing a departure sentence. State v. Betancourt, 552 So.2d 1107 (Fla. 1989).

HERSEY, STONE and KLEIN, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.