488 So. 2d 649 | Fla. Dist. Ct. App. | 1986
This is another sentencing guidelines departure case.
The Defendant constitutes a danger to the community in that he shot the victim almost killing him which constitutes the violation. He is very violent and the facts of his violation prove that out.
The defendant concedes that he may be adjudged guilty of violation of community control even though acquitted of charges on which the violation of community control is founded
These reasons given for the departure relate to the charges of which the defendant was acquitted and contravene Florida Rule of Criminal Procedure 3.701(d)(ll) which provides that reasons for deviating from the guidelines shall not include factors relating to prior arrests without conviction or factors relating to the instant offenses for which convictions have not been obtained.
The departure sentence is vacated and the cause remanded for resentencing in accordance with the sentencing guidelines,
SENTENCE VACATED; CAUSE REMANDED FOR RESENTENCING.
. See Horn v. State, 433 So.2d 670 (Fla. 4th DCA 1983).
. This case illustrates an anomaly in the law at this time. If it is proper to rely on facts underlying criminal charges resulting in an acquittal to terminate probation or community control, it should be proper to rely on those same facts for a departure sentence. Conversely, if it is improper to rely on facts underlying criminal charges resulting in an acquittal to impose a departure sentence, it should be improper to rely on those same facts to terminate probation or community control. The legal propriety of relying on facts underlying criminal charges resulting in an acquittal as the basis for an adverse adjudication of the defendant’s legal rights on collateral matters, such as the imposition of a departure sentence, or termination of probation or community control, should be the same in either case.