VIRGINIA WHITE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a trial court improperly departed from sentencing guidelines by relying on past convictions already factored into the presumptive sentence.
Appellant was convicted of felony driving while license suspended and violating probation. The trial court departed from sentencing guidelines based o…
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PER CURIAM.
This appeal arises from the appellant’s conviction and sentence for felony driving while license suspended, in violation of section 322.34(l)(c), Florida Statutes (1995). We reverse since, in departing from the guidelines, the trial court improperly relied upon conduct which was already factored into the presumptive guidelines sentence.
The appellant pled guilty to the charged crime of driving while license suspended and admitted three counts of violating her probation for felony driving under the influence. See § 316.193(b), Florida Statutes (1995). The trial court scored all offenses on the same sentencing guidelines scoresheet, departing from the guidelines based on three factors, two of which, as the state concedes, were error because the trial court failed to orally articulate these two grounds at the sentencing hearing. See Gillen v. State, 696 So. 2d 952 (Fla. 4th DCA 1997).
The trial court stated that the third departure ground was that the appellant had engaged in similar driving misconduct in the past. “Since prior convictions are already factored in as part of the presumptive guidelines sentence, they may not be used as a clear and convincing reason for departure.” State v. Davis, 411 So. 2d 565, 565 (Fla.1985). The trial court improperly relied upon the appellant’s past driving convictions for purposes of departing from the guidelines. Accordingly, we reverse and remand for a new sentencing hearing. Upon resentencing, the appellant is entitled to separate score sheets since she committed the offenses in different years, during which different sentencing guidelines were in effect. See Tubwell v. State, 661 So. 2d 380, 381 (Fla. 1st DCA 1995).
Reversed and remanded for a new sentencing hearing.
STONE, C.J., and WARNER and PARIENTE, JJ., concur.
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State v. Baez, 730 So. 2d 807 (Fla. 4th DCA 1999)…PER CURIAM. We reverse the sentence imposed in this case and remand for a new sentencing hearing. See State v. Cruz, 710 So. 2d 123 (Fla. 4th DCA 1998); White v. State, 702 So. 2d 1327 (Fla. 4th DCA 1997); State v. Alvarez, 709 So. 2d 194 (Fla. 3d DCA 1998); State v. Hillhouse, 708 So. 2d 326 (Fla. 2d DCA 1998). On remand, the new sentencing. hearing [*808] should be conducted pursuant to Florida Rule of Criminal Procedure 3.700(c…
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Jones v. State, 718 So. 2d 1271 (Fla. 1st DCA 1998)…, affirmed, 678 So. 2d 330 (Fla.1996). Prior convictions which are already factored into the guidelines sentence are not a proper justification for a departure sentence. See Odom v. State, 688 So. 2d 991 (Fla. 1st DCA 1997). See also White v. State, 702 So. 2d 1327 (Fla. 4th DCA 1997). We express no opinion whether other statutorily approved grounds for a departure may be found if Jones is again convicted after retrial. Accordingly, Jones’ conviction and sentence for possession of cocaine is REVERSED and REMA…
Authorities Cited
- Tubwell v. State, 661 So. 2d 380 (Fla. 1st DCA 1995)
- Desmond R. Gillen v. State, 696 So. 2d 952 (Fla. 4th DCA 1997)