Todd v. State

Mar 5, 1987
No. 86-1275
Versions:503 So. 2d 451
12 Fla. L. Weekly 701
1987 Fla. App. LEXIS 11988
ORFINGER, Judge.

The trial court departed from the recommended guidelines sentence of community control or 12-30 months’ imprisonment and sentenced defendant to 5 years’ incarceration. The trial court’s reasons for departure can be summarized as follows:

1. Defendant violated his probation which is now being revoked.
2. The defendant has an extensive history of Category 6 (Theft, Forgery, Fraud) convictions.
3. Defendant has made no effort to rehabilitate himself nor is there hope for his rehabilitation.
4. Defendant has a guilty mind as indicated by his prior record and the fact that he used a belt or device under his clothing to conceal the goods he stole.

Reason number 1, revocation of defendant’s probation, would support a one cell departure to 21/2-31/2 years’ incarceration, but no more absent other clear and convincing reasons for departure. Boldes v. State, 475 So.2d 1356 (Fla. 5th DCA 1985). Reason number 2, defendant’s prior record, is already scored and cannot be used again to increase the sentence. Hendrix v. State, 475 So.2d 1218 (Fla.1985). Additionally, there is a place on the score-sheet for calculating prior Category 6 convictions, and such prior convictions score 5 points each. Curiously, this space is left blank on the scoresheet, so either the score-sheet was incorrectly calculated or the record does not support the reason given. In any event, since the prior Category 6 convictions should be calculated into the total score, they cannot be used again as a basis for departure. Hendrix, supra.

The only record support for reason number three is defendant’s prior record which is not a valid basis for departure. Hendrix, supra; Cawthon v. State, 486 So.2d 90 (Fla. 5th DCA 1986). Reason number 4, even if valid (which we need not decide), may not be used as a basis for departure because it refers to an offense for which defendant had not been convicted. See Fla.R.Crim.P. 3.701(d)(11).

Because none of the cited reasons for departure supports the departure sentence, this case must be reversed and remanded for resentencing.

Judgment AFFIRMED; REVERSED and REMANDED for resentencing.

UPCHURCH, C.J., and COWART, J„ concur.