LAJUANA ANN SPELLS, A/K/A/ WANDA DIANE MILLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Departure sentences based solely on a defendant's prior record, which is already factored into sentencing guidelines, are improper without clear and convincing reasons.
The defendant pleaded guilty to second-degree grand theft and prostitution, receiving a departure sentence above the recommended guideline sentence. T…
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ORFINGER, Judge.
The defendant appeals from a departure sentence of 4 years’ imprisonment following the entry of a guilty plea to second degree grand theft and prostitution. The recommended guideline sentence was any non-state prison sanction.
The written reasons stated for departure were:
This defendant is a confirmed habitual prostitute and thief. Although only 21 yrs old she has at least 5 prior prostitution related offenses and 4 other misdemeanor offenses.
These reasons are very similar to those disapproved by this court in Bentley v. State, 477 So. 2d 58 (Fla. 5th DCA 1985),1 on the reasoning of Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Hendrix rejects departure sentences based solely on matters which are already factored into the guidelines calculation, so departures based solely on a defendant’s prior record are improper. The sentence is vacated and the cause is remanded to the trial court with directions to sentence defendant in accordance with the guidelines, absent clear and convincing reasons for departure.
REVERSED and REMANDED.
DAUKSCH and COWART, JJ„ concur. . The reasons for departure in Bentley were: The defendant has seventeen prior felony convictions. As late as 1979 he received thirty years as an habitual offender. Since then he has received two armed robbery convictions. He should not be released from prison.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Holden v. State, 487 So. 2d 1199 (Fla. 5th DCA 1986)…Davis, for which he was convicted of assault with intent to commit manslaughter. This conviction was included in the scoresheet calculation and thus was an improper reason for departure. Hendrix v. State, 475 So. 2d 1218 (Fla.1985); Spells v. State, 482 So. 2d 608 (Fla. 5th DCA 1986); Scott v. State, 482 So. 2d 607 (Fla. 5th DCA 1986). The second time lethal force was used considers an essential element of the instant offense. This reason is also impermissible. Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 19…
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Bentley v. State, 477 So. 2d 58 (Fla. 5th DCA 1985)