No. BE-440 | Fla. Dist. Ct. App. | Aug 22, 1986
Terry Ray Thompson appeals the trial court’s upward departure from the sentencing guidelines recommended sentence. We reverse and remand for resentencing.
The appellant pled nolo contendere to one count of vehicular homicide which charged, in part, that he operated a motor vehicle “in a reckless manner likely to cause the death of, or great bodily harm to another, by driving under the influence of alcohol to the point of having impaired faculties, driving at an excessive rate of speed, failing to keep the vehicle under control, and failure to change lanes properly_”
The trial judge stated the following three reasons for departure: 1) defendant was driving with .13 blood alcohol level, 2) defendant was driving while license was suspended; 3) defendant was on probation at the time of the offense for driving with a suspended license.
The first reason was an integral part of the charge and contains no explanation as to why this blood alcohol reading is a circumstance so egregious as to require departure.
The second reason for departure considers an offense for which the offender has not been convicted and is invalid.
The third reason, concerning probationary status of the appellant, has been factored into the scoresheet under legal constraint at the time of the offense and will not support an independent reason for departure.