Defendant Isaac Lamar Hall appeals his judgments and sentences for delivery of phencyclidine, carrying a concealed firearm, and two counts of delivery of cannabis. The only question we address is whether the trial court erred in exceeding the sentencing guidelines based on an impermissible reason for departure.
On November 6, 1981, the trial court placed defendant on two concurrent five-year terms of probation for delivery of phencyclidine and carrying a concealed firearm. In June 1984, a probation officer alleged by affidavit that defendant had violated probation by possessing and selling marijuana. The state charged defendant with two counts of delivery and two counts of possession of cannabis. Defendant pled guilty to the violation of probation and to the two counts of delivery of cannabis. The possession counts were nol-prossed.
The guidelines scoresheet recommended a presumptive sentence of community control or twelve to thirty months incarceration. The trial judge departed from the guidelines and sentenced defendant to five years on each of the two original offenses and five years on each count of delivery of cannabis, all counts to be served consecutively. In the written reasons for departure, the judge noted that defendant had admitted violating probation, had a prior criminal history, and had exhibited a pattern of criminality.
Defendant argues that his prior record cannot be used as a reason for departure pursuant to Hendrix v. State,
The state responds that at the sentencing hearing the judge instructed that a written order be prepared emphasizing defendant made “two sales while on probation for a sale.” Furthermore, the state notes that the violation of a substantive condition of probation is a proper reason for departure. Hernandez v. State,
We agree with the state’s position. From a reading of the transcript of the sentencing hearing and the written reasons for departure, we are convinced that the judge’s primary concern was defendant’s violation of probation. Therefore, it is evident beyond a reasonable doubt that the judge would have imposed the same sentences without considering any other reason. Albritton; Hendrix. See also Ochoa v. State,
We find no merit to defendant’s other contention that the trial court sentenced defendant in excess of the statutory maximum by ordering him to serve his sentences consecutively.
Accordingly, we affirm defendant’s convictions and sentences.
