Nunez v. State, 482 So. 2d 565

FRANK, Judge.

Carlos Nunez, who was convicted of and sentenced for possession of cocaine and possession of drug paraphernalia, urges us to vacate his sentence because the trial court relied upon impermissible reasons for departure from the guidelines. We agree.

Among the reasons expressed by the trial court for departure were an arrest for larceny, which had been dismissed, and the pendency of detainers for the defendant on similar criminal charges. The consideration of arrests for which no convictions have been obtained is improper. Fla.R. Crim.P. 3.701(d)(ll). Furthermore, in branding the defendant an “irretrievable criminal” the judge focused primarily on past offenses that had been factored into the scoresheet and which therefore could not be used as a basis for departure. Hendrix v. State, 475 So.2d 1218 (Fla.1985).

Accordingly, we affirm the appellant’s convictions but vacate the sentence and remand to the trial court for resentencing in accordance with the guidelines.

SCHEB, A.C.J., and LEHAN, J., concurs.

Case Details

Case Name: Nunez v. State

Court Name: District Court of Appeal of Florida

Date Published: Feb 5, 1986

Citations: 482 So. 2d 565; 11 Fla. L. Weekly 377; 1986 Fla. App. LEXIS 6264; No. 85-778

Docket Number: No. 85-778

Court Abbreviation: Fla. Dist. Ct. App.