Atkinson v. State

456 So. 2d 568, 9 Fla. L. Weekly 2087, 1984 Fla. App. LEXIS 15232

Opinion

SHARP, Judge.

Atkinson appeals from sentences he received after pleading guilty to charges in five separate informations involving burglaries and grand thefts.¹ Atkinson had committed the burglary and grand theft offenses while he was on probation for armed trespass and carrying a concealed firearm, Case No. 81-5755. He also pleaded guilty to the violation of probation charge. The court imposed sentences of five years for each case, including Case No. 81-5755, each to run concurrently with the other. The sentences exceed the guidelines’ recommended sentence of any non-state prison sanction, Florida Rule of Criminal Procedure 3.988(c), and Atkinson argues the reasons for departure given by the trial judge on the score sheet were improper. Fla.R.Crim.P. 3.701(d)(ll). We disagree and affirm.

A “Category 5-Burglary” score sheet was presented to the judge at the sentencing hearing. The total point count placed Atkinson in the guideline range of any nonstate prison sanction. In departing from the guideline sentence, the judge wrote: “The defendant is presently being sentenced for 5 offenses, all committed while on a cell one (probation) disposition. It would be a travesty to simply repeat probation.”

In Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984), we held that in an appropriate case, a court may rely upon a violation of probation to enhance or depart from the guidelines’ recommended sentence.

AFFIRMED.

DAUKSCH and COWART, JJ., concur.

Footnotes

1

. Atkinson pleaded guilty to five counts of burglary, section 810.02, Florida Statutes (1983), and three counts of grand theft, section 812.014, Florida Statutes (1983).