Chapman v. State

672 So. 2d 637, 1996 Fla. App. LEXIS 4377, 1996 WL 200231

Opinion

DAUKSCH, Judge.

This is an appeal from a sentence. The state has conceded that it was improper for the grand theft to be an “additional offense” under the sentencing guidelines’ confusing scheme. The grand theft should be the “primary offense” so that the court can legally habitualize the appellant on the burglary conviction and thus maximize the penalty, as the judge wanted to do and should do. Watson v. State, 658 So.2d 118 (Fla. 2d DCA 1995); Ricardo v. State, 608 So.2d 93 (Fla. 2d DCA 1992). The scoresheet should be redone and sentencing must be redone. On remand the court cannot depart for the reason that there is a pattern of escalating criminal behavior. The behavior was a continuing pattern but not escalating.

SENTENCE VACATED; REMANDED.

GOSHORN and HARRIS, JJ., concur.