JONATHAN E. LUNDIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jonathan Lundin was sentenced to life imprisonment for sexual battery with a deadly weapon, a departure from his presumptive guideline sentence of 12-17 years. The appellate court reversed, finding the trial judge improperly double-counted factors already reflected in the sentencing score to justify the departure sentence.
The trial court's departure sentence was improper and vacated. The use of a deadly weapon—an element already incorporated into Lundin's score as part of the sexual battery conviction—cannot be used a second time to justify a departure. Similarly, the prior felony and its circumstances were already scored and cannot serve as an independent basis for departure.
[1] A trial court may not depart from presumptive sentencing guidelines based on facts or circumstances already factored into the defendant's scoresheet.
[2] A prior conviction, even if similar to the current offense, cannot be used as a basis for departure from sentencing guidelines if it has already been scored.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Though the guidelines take into consideration his prior felony conviction, it does not take into consideration the fact that such crime was committed in the same depraved manner as this case which clearly convinces the court that this defendant will be a threat to society when released from prison.”
Trial judge's stated reason for imposing the departure sentence of life imprisonment
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Join FLexlaw to unlock all legal intelligenceLundin was convicted of sexual battery with the use of a deadly weapon. His sentencing scoresheet totaled 357 points, yielding a presumptive guideline…
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SHARP, Judge.
The trial court sentenced Lundin to life imprisonment, the statutory maximum for the crime of sexual battery with the use of a deadly weapon.1 Lundin’s presumptive guideline2 sentence was twelve to seventeen years, based on a scoresheet totaling three hundred fifty-seven points. Ninety-five points were attributable to a prior felony and a misdemeanor conviction. Lundin appeals the departure sentence and we reverse.
The reason given by the trial judge for the life sentence was:
Though the guidelines take into consideration his prior felony conviction, it does not take into consideration the fact that such crime was committed in the same depraved manner as this case which ^clearly convinces the court that this defendant will be a threat to society when released from prison.
There is nothing in the record on appeal to substantiate the trial judge’s finding that this crime was performed in a “depraved manner,” other than that the rape was accomplished at knife-point. That element was already factored into the score, since use of a deadly weapon was an element of the crime for which Lundin was convicted. It cannot be used a second time as a basis to depart.3
In addition, the record is completely silent as to the circumstances of the prior similar crime alluded to by the trial judge. Even if the prior felony was also accomplished with the use of a deadly weapon, it was fully scored in the record portion of Lundin’s scoresheet as discussed above, and thus it cannot serve as a basis to depart.4
We therefore have no alternative but to vacate the sentence and remand for sentencing within the guidelines.
SENTENCE VACATED; REMANDED FOR RESENTENCING.
DAUKSCH and COBB, JJ., concur. . §§ 794.011(3), 775.082(1), Fla.Stat. (1985).
. Fla.R.Crim.P. 3.701.d.8.
. Hendrix v. State, 475 So. 2d 1218 (Fla.1985).
. Hendrix.