CARL ROBERT SCHURMAN, A/K/A EDDIE LEE FERGUSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court's reason for departing from sentencing guidelines was invalid, but the scoring of an alleged uncounseled conviction was proper.
Appellant pleaded nolo contendere to retail theft and appealed his sentence, not his conviction. He raised two issues regarding sentencing: the validi…
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RYDER, Acting Chief Judge.
Appellant pleaded nolo contendere to a charge of retail theft. He does not challenge his conviction, which we affirm. In this appeal, he raises two issues concerning his sentencing. Both issues have been previously addressed by this court.
Appellant s first argument is that the trial court’s sole reason for departing from the guidelines — lying about his prior record — is invalid. This court has previously decided this issue in appellant’s favor. Smith v. State, 516 So. 2d 78 (Fla. 2d DCA 1987); Davis v. State, 509 So. 2d 1329 (Fla. 2d DCA 1987); Anderson v. State, 503 So. 2d 388 (Fla. 2d DCA 1987); Denson v. State, 493 So. 2d 60 (Fla. 2d DCA 1986). Accordingly, we reverse appellant’s sentence and remand for resentencing within the guidelines. See Shull v. Dugger, 515 So. 2d 748 (Fla.1987).
Appellant’s second argument on appeal is that the trial court erred in scoring an alleged uncounseled conviction on the sentencing guidelines scoresheet. After reviewing the record in this case, we hold that appellant did not make a prime facie case that the prior conviction was uncoun-seled. Therefore, the trial court was correct in scoring the conviction on the score-sheet. See Croft v. State, 513 So. 2d 759 (Fla. 2d DCA 1987).
In summary, appellant’s conviction, his sentencing guidelines scoresheet and its scoring stand; the trial court’s departure falls. We remand for resentencing within the guidelines.
Affirmed in part; reversed in part and remanded with instructions.
LEHAN and HALL, JJ., concur.
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State v. Mitchell, 538 So. 2d 71 (Fla. 3d DCA 1989)…departure from the sentencing guidelines. The trial judge’s other reasons for departure also lack merit. First, the fact that the sentence was entered upon a plea to the court is not in and of itself a valid reason for departure. State v. Matthews, 522 So. 2d 1026 (Fla. 2d DCA 1988); State v. Johnson, 512 So. 2d 1116, 1117 (Fla. 3d DCA 1987). See State v. Hopkins, 520 So. 2d 301, 302, n. 2 (Fla. 3d DCA 1988). Second, the fact that the sentence was a one cell departure from the guidelines range is an unconvin…
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State v. Lawler, 531 So. 2d 752 (Fla. 4th DCA 1988)…he trial court made a downward departure from the recommended sentencing guideline range without assigning written legal rea [*753] sons therefor. This was error. Fla.R. Crim.P. 3.701(d)(ll). State v. Nichols, (Fla. 4th DCA 1988); State v. Matthews, 522 So. 2d 1026 (Fla. 2d DCA 1988); State v. Johnson, 512 So. 2d 1116 (Fla. 3d DCA 1987). We reverse and remand with instructions to either sentence within the recommended guidelines range, or, to provide written reasons for any departure therefrom. REVERSED AN…
Authorities Cited
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- Denson v. State, 493 So. 2d 60 (Fla. 2d DCA 1986)
- Jackson Croft v. State, 513 So. 2d 759 (Fla. 2d DCA 1987)
- Anderson v. State, 503 So. 2d 388 (Fla. 2d DCA 1987)
- Davis v. State, 509 So. 2d 1329 (Fla. 2d DCA 1987)
- State v. Bragg, 516 So. 2d 78 (Fla. 5th DCA 1987)
- Smith v. State, 516 So. 2d 78 (Fla. 2d DCA 1987)