JOHN DANIEL HUDSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Defendant appeals from his sentences for possession and delivery of drugs and contends that there were impermissible reasons for the trial court’s departure from the presumptive sentencing range under the guidelines. We agree and reverse.
The trial court’s reason that the defendant, while on probation, was in possession of cocaine under circumstances indicating that he was selling cocaine was impermissible because it related to an offense for which a conviction was not obtained. See Dawkins v. State, 487 So. 2d 63 (Fla. 2d DCA 1986). The trial court’s reason that the defendant was a threat to society was impermissible. See Martinez-Diaz v. State, 484 So. 2d 633 (Fla. 2d DCA 1986).
Reversed and remanded for sentencing within the presumptive guidelines range or one cell higher for the violation of probation.
CAMPBELL, A.C.J., and LEHAN and FRANK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Tuthill v. State, 518 So. 2d 1300 (Fla. 3d DCA 1987)…violation based on the commission of a crime may not support a departure if the defendant has not been convicted of the offense. Lewis v. State, 510 So. 2d 1089 (Fla. 2d DCA 1987); Royal v. State, 508 So. 2d 1313 (Fla. 2d DCA 1987); Hudson v. State, 504 So. 2d 2 (Fla. 2d DCA 1986); Mack v. State, 489 So. 2d 205 (Fla. 2d DCA 1986). None of these cases, however, is buttressed by any supporting reasoning beyond an announcement of the conclusion; the only case relied upon — aside from each of the decision’s cit…
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Royal v. State, 508 So. 2d 1313 (Fla. 2d DCA 1987)…st reason for departure was that appellant had committed another offense (grand theft) while on “probation”. This is an improper reason because no conviction had yet been obtained for that offense. See Fla.R.Crim.P. 3.701(d)(ll) and Hudson v. State, 504 So. 2d 2 (Fla. 2d DCA 1986). The second reason given by the court for departure was that appellant had demonstrated an inability to successfully complete community control. This is an invalid reason for departure, although it is cause for one cell enhancem…
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Walker v. State, 519 So. 2d 1105 (Fla. 3d DCA 1988)…ort this statement is the defendant’s prior record, which has already been factored in in computing the recommended punishment. Williams v. State, 492 So. 2d 1308 [*1106] (Fla.1986); Hendrix v. State, 475 So. 2d 1218 (Fla.1985). See Hudson v. State, 504 So. 2d 2 (Fla. 2d DCA 1986) (threat to society impermissible); Thorne v. State, 496 So. 2d 891 (Fla. 2d DCA 1986) (threat to society impermissible reason to depart); Dowling v. State, 495 So. 2d 874 (Fla. 5th DCA 1986) (reason that “the departure is necessar…
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- Martinez-Diaz v. State, 484 So. 2d 633 (Fla. 2d DCA 1986)
- Dawkins v. State, 487 So. 2d 63 (Fla. 2d DCA 1986)