THOMAS WAYNE BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A trial judge may not depart from recommended sentencing guidelines based on criminal activity for which the defendant was neither charged nor convicted.
Appellant pleaded guilty to burglary and was sentenced to concurrent three-year sentences, departing from the recommended guidelines. The judge cited …
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BARFIELD, Judge.
Thomas Wayne Brown appeals his concurrent three year sentences for burglary, contending that the trial judge’s reason for departing from the recommended guidelines sentence of any nonstate prison sanction was invalid. We reverse.
The trial judge noted on the sentencing guidelines scoresheet the following reason for departure from the recommended sentence: “The thefts in question were for the purpose of or the proceeds used for the purpose of committing a further criminal activity, i.e., the purchase of controlled substances, to-wit: marijuana and cocaine.” The record clearly demonstrates that the trial judge improperly departed from the recommended guideline sentence because the money which was stolen was used to commit “a further criminal activity” for which appellant was neither charged nor convicted.1 Florida Rule of Criminal Procedure 3.701(d)(ll); Vanover v. State, 498 So. 2d 899 (Fla.1986); Scurry v. State, 489 So. 2d 25 (Fla.1986).
The sentences are REVERSED and the case is REMANDED to the trial court for resentencing within the guidelines recommended range. Williams v. State, 492 So. 2d 1308 (Fla.1986).
SHIVERS and NIMMONS, JJ., concur. . Appellant was charged with two counts each of burglary and theft; he negotiated a plea of guilty to the burglary counts in exchange for the nolle prosequi of the theft charges and the State’s promise not to seek sentencing outside the guidelines or recidivist sentencing. We consider that the trial court used the term "theft” in his reason for departure in the broader sense of “crime”, and intended to refer to the crime of burglary for which appellant was convicted. However, if he intended to refer to the theft charges which had been dropped, his error was compounded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brumley v. State, 512 So. 2d 220 (Fla. 1st DCA 1987)…21,1987, alleging that on remand the trial court should have been directed to impose a guidelines sentence as a result of the departure reason having [*221] been declared invalid, citing Williams v. State, 492 So. 2d 1308 (Fla.1986); Brown v. State, 509 So. 2d 1342 (Fla. 1st DCA 1987); and Foister v. State, 510 So. 2d 371 (Fla 1st DCA 1987). Under the facts herein, we disagree that the above cases are controlling. In the present case, unlike the foregoing cases, the trial court relied on a single departure r…
Authorities Cited
- Scurry v. State, 489 So. 2d 25 (Fla. 1986)
- Williams v. State, 492 So. 2d 1308 (Fla. 1986)
- Creed Martin Vanover v. State, 498 So. 2d 899 (Fla. 1986)