CHARLIE LEE WASHINGTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial judge improperly departed from the recommended sentencing guidelines sentence because the reasons given were invalid.
The defendant was convicted of grand theft and burglary. The trial court departed from the recommended sentencing guidelines sentence, imposing a five…
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SCHEB, Judge.
Defendant Charlie Lee Washington was convicted of two counts of grand theft and burglary. At the sentencing hearing, the assistant state attorney announced that he had calculated the defendant’s sentence to be twelve to thirty months’ incarceration based on the sentencing guidelines score-sheet. The trial court noted that this was in error, announced that it was going to “depart” and sentenced the defendant to prison for five years. Defendant’s appeal raises two points, each relating to his sentence. First, he argues that the scoresheet was not properly prepared and, second, that the trial judge improperly departed from the recommended guidelines sentence.
As to the defendant’s first point, the state concedes the scoresheet was improperly prepared. As to the defendant’s second point, the court gave five written reasons for departure, none of which are valid. The defendant’s previous record and the fact that he was on two probations are invalid reasons because they are already factored into the presumptive guidelines sentence. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). The fact that the defendant assaulted an officer while on probation is invalid because it is a factor relating to the instant offenses for which a conviction has not been obtained. Fla.R.Crim.P. 3.701(d)(ll). Finally, the protection of society and the fact that the defendant committed perjury are also invalid reasons. See Williams v. State, 493 So. 2d 48 (Fla. 2d DCA 1986); Guerrero v. State, 484 So. 2d 59 (Fla. 2d DCA 1986).
Accordingly, we affirm the defendant’s convictions but we vacate his sentence. We remand for the preparation of a new scoresheet and resentencing within the guidelines.
GRIMES, A.C.J., and FRANK, J., concur.
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Citator
Cited By
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Alphonso McNEALY v. State, 502 So. 2d 54 (Fla. 2d DCA 1987)…State, 494 So. 2d 298 (Fla. 1st DCA 1986). 3. Appellant threatened to kill one of the officers who arrested him. Factors relating to the instant offense for which a conviction was not obtained are improper bases for departure. Washington v. State, 500 So. 2d 316 (Fla. 2d DCA 1986). 4. Appellant has been a discipline problem while in the county jail. Again, failure to cooperate and general disregard for the criminal justice system are invalid reasons to depart from the guidelines. Scott v. State, 488 So. 2d…
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Bienvenido Guerrero v. State, 484 So. 2d 59 (Fla. 2d DCA 1986)
- Williams v. State, 493 So. 2d 48 (Fla. 2d DCA 1986)