Daies v. State

District Court of Appeal of Florida

Daies v. State

549 So. 2d 1180, 14 Fla. L. Weekly 2384, 1989 Fla. App. LEXIS 5788, 1989 WL 120472

CourtDistrict Court of Appeal of Florida

DecidedOctober 11, 1989

DocketNo. 88-2955

StatusPublished

This text of 549 So. 2d 1180 (Daies v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Daies v. State, 549 So. 2d 1180, 14 Fla. L. Weekly 2384, 1989 Fla. App. LEXIS 5788, 1989 WL 120472 (Fla. Ct. App. 1989).

Pincite

Opinion

ERVIN, Judge.

This is an appeal from the final conviction and sentence of the appellant under Section 843.15, Florida Statutes (1987), for failure to appear for felony trial proceedings. We affirm the appellant’s conviction, and reverse the sentence and remand with directions.

The appellant was assessed twenty-four points for being under legal constraint when he failed to appear at trial. However, the legal constraint at issue was an element of the primary offense and therefore did not justify the assessment of additional points. Brown v. State, 502 So.2d 1293, 1294 (Fla. 1st DCA 1987).

Based upon the erroneous inclusion of the twenty-four points, the trial court sentenced the appellant within the recommended range. Because the score is now shown to be incorrect, resulting in what amounts to an upward departure without written reasons, the trial court may on remand impose a departure sentence if it so desires. Roberts v. State, 547 So.2d 129 (Fla.1989).

NIMMONS and ZEHMER, JJ., concur.

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