CARLOS NUNEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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FRANK, Judge.
Carlos Nunez, who was convicted of and sentenced for possession of cocaine and possession of drug paraphernalia, urges us to vacate his sentence because the trial court relied upon impermissible reasons for departure from the guidelines. We agree.
Among the reasons expressed by the trial court for departure were an arrest for larceny, which had been dismissed, and the pendency of detainers for the defendant on similar criminal charges. The consideration of arrests for which no convictions have been obtained is improper. Fla.R. Crim.P. 3.701(d)(ll). Furthermore, in branding the defendant an “irretrievable criminal” the judge focused primarily on past offenses that had been factored into the scoresheet and which therefore could not be used as a basis for departure. Hendrix v. State, 475 So. 2d 1218 (Fla.1985).
Accordingly, we affirm the appellant’s convictions but vacate the sentence and remand to the trial court for resentencing in accordance with the guidelines.
SCHEB, A.C.J., and LEHAN, J., concurs.
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Riggins v. State, 489 So. 2d 180 (Fla. 1st DCA 1986)…ture); Fowler v. State, 482 So. 2d 602 (Fla. 5th DCA 1986) (prior record indicating defendant has not and cannot live in a nonstructured environment and a free society without violating the law is insubstantial reason for departure); Nunez v. State, 482 So. 2d 565 (Fla. 2d DCA 1986) (branding defendant an “irretrievable criminal” focused primarily on past offenses that had been factored into the scoresheet and therefore this reason could not be used as a basis for departure); and McCoy v. State, 482 So. 2d 56…
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Fabelo v. State, 488 So. 2d 915 (Fla. 2d DCA 1986)…d 790 (Fla. 4th DCA 1986). Finally, the factors surrounding the new charges of delivery and possession of cannabis are invalid grounds for departure as they relate to offenses for which no convictions were obtained. Fowler v. State, Nunez v. State, 482 So. 2d 565 (Fla. 2d DCA 1986). Moreover, we reject the written reason that these new charges occurred while the defendant was on probation, thereby showing a “lack of respect for law and order in society.” Fla.R.Crim.P. 3.701(d)(14); see also Tillman v. State,…
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McHANEY v. State, 513 So. 2d 252 (Fla. 2d DCA 1987)…rge. See § 921.001(4)(a), Fla.Stat. (1985) and Rule 3.701(d), Fla.R.Crim.P. (1987). It was, therefore, error to sentence McHaney for attempted robbery without the scoresheet. Walker v. State, 12 F.L.W. 1916 (Fla. 2d DCA Aug. 5, 1987); Mack v. State, 482 So. 2d 565 (Fla. 2d DCA 1986). On remand, the capital felony may be considered by the trial judge as a reason for departing from the guidelines. Weems v. State, 469 So. 2d 128 (Fla.1985); see Davis v. State, 493 So. 2d 82 (Fla. 1st DCA 1986). The convictions…
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- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)