Gaddis v. State

493 So. 2d 90, 11 Fla. L. Weekly 1912, 1986 Fla. App. LEXIS 9555

Opinion

DAUKSCH, Judge.

This is an appeal from a guideline sentence. The sentencing judge departed upwards four cells from the recommended guideline sentence for the following reasons:

(1) Defendant violated his probation. The violation was that he committed a new crime, a battery, while on probation.

(2) Defendant violated probation. Defendant was twice previously and once subsequently convicted of possession of controlled substance — the same type of offense for which he was placed on probation in this case. [If reason (2) is held invalid, I would have still departed based on reason (1) and departed to the same extent.]

Reason number one is sufficient for an upwards departure, but it is limited to one cell. Boldes v. State, 475 So.2d 1356 (Fla. 5th DCA 1985). Parenthetically, it is noted there is no evidence of a conviction of battery. In this case one cell would permit a sentence of thirty months.

The multiple reasons listed by the trial judge under number two are insufficient for departure. First, the violation of probation is already factored in reason number one. Second, the two prior convictions were, or should have been, factored into the guideline scoresheet and thus are not valid reasons for departure. Hendrix v. State, 475 So.2d 1218 (Fla.1985). Third, there is no evidentiary support for the subsequent conviction.

The sentence is quashed and this cause remanded for resentencing.

SENTENCE QUASHED; REMANDED.

COBB and COWART, JJ., concur.