Abraham DAWKINS, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, Second District.
*64 James Marion Moorman, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and James A. Young, Asst. Atty. Gen., Tampa, for appellee.
GRIMES, Acting Chief Judge.
This is an appeal from the judgments and sentences resulting from convictions for possession of cocaine and carrying a concealed weapon. We find merit only in appellant's assertion that the trial court departed from the guidelines based on improper reasons.
At the sentencing hearing, a guidelines scoresheet was prepared showing a presumptive sentence of any nonstate prison sanction. However, the trial court departed from the guidelines and sentenced appellant to three years in prison on the possession of cocaine charge and to one year in prison on the concealed weapon charge to run concurrently.
We shall address each of the court's written reasons for departure:
(1) Appellant's undesirable discharge from the military for being AWOL on two occasions, once for more than a year. We believe that the AWOL violations constitute a permissible reason for departure because they are objective manifestations of appellant's nonconformance to social norms and are indicative of appellant's unlikeliness as a candidate for rehabilitation. See Scurry v. State,
(2) Prior conviction for substance abuse. Crimes which have already been calculated into the guidelines cannot be a basis for departure. Hendrix v. State,
(3) Circumstances of a previous arrest not associated with this conviction. Florida Rule of Criminal Procedure 3.701(d)(11) precludes consideration of factors relating to prior arrests without conviction.
(4) Crimes occurred in a high crime area. Cases such as Mincey v. State,
(5) Since appellant possessed a substantial amount of cocaine and $275 at the time of his arrest, he must be in the business of selling cocaine. Florida Rule of Criminal Procedure 3.701(d)(11) also precludes consideration of factors relating to the instant offenses for which convictions have not been obtained.
(6) Possession of an operable, concealed, and loaded firearm. Although appellant was charged with carrying a concealed firearm, the jury convicted him only of carrying a concealed weapon. Therefore, as in (5) above, the reference to the concealed firearm is a factor relating to the instant offense for which a conviction has not been obtained.
When a departure is based on both permissible and impermissible reasons, the sentence should be reversed and the case remanded for resentencing unless the state is able to show beyond a reasonable doubt that the absence of the invalid reasons would not have affected the departure sentence. Albritton v. State,
FRANK and HALL, JJ., concur.
