Nunez v. State

District Court of Appeal of Florida

Nunez v. State

482 So. 2d 565, 11 Fla. L. Weekly 377, 1986 Fla. App. LEXIS 6264

CourtDistrict Court of Appeal of Florida

DecidedFebruary 5, 1986

DocketNo. 85-778

StatusPublished

Cited by2 cases

This text of 482 So. 2d 565 (Nunez 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.

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Nunez v. State, 482 So. 2d 565, 11 Fla. L. Weekly 377, 1986 Fla. App. LEXIS 6264 (Fla. Ct. App. 1986).

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Opinion

FRANK, Judge.

Carlos Nunez, who was convicted of and sentenced for possession of cocaine and possession of drug paraphernalia, urges us to vacate his sentence because the trial court relied upon impermissible reasons for departure from the guidelines. We agree.

Among the reasons expressed by the trial court for departure were an arrest for larceny, which had been dismissed, and the pendency of detainers for the defendant on similar criminal charges. The consideration of arrests for which no convictions have been obtained is improper. Fla.R. Crim.P. 3.701(d)(ll). Furthermore, in branding the defendant an “irretrievable criminal” the judge focused primarily on past offenses that had been factored into the scoresheet and which therefore could not be used as a basis for departure. Hendrix v. State, 475 So.2d 1218 (Fla.1985).

Accordingly, we affirm the appellant’s convictions but vacate the sentence and remand to the trial court for resentencing in accordance with the guidelines.

SCHEB, A.C.J., and LEHAN, J., concurs.

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FRANK, Judge.

Carlos Nunez, who was convicted of and sentenced for possession of cocaine and possession of drug paraphernalia, urges us to vacate his sentence because the trial court relied upon impermissible reasons for departure from the guidelines. We agree.

Among the reasons expressed by the trial court for departure were an arrest for larceny, which had been dismissed, and the pendency of detainers for the defendant on similar criminal charges. The consideration of arrests for which no convictions have been obtained is improper. Fla.R. Crim.P. 3.701(d)(ll). Furthermore, in branding the defendant an “irretrievable criminal” the judge focused primarily on past offenses that had been factored into the scoresheet and which therefore could not be used as a basis for departure. Hendrix v. State, 475 So.2d 1218 (Fla.1985).

Accordingly, we affirm the appellant’s convictions but vacate the sentence and remand to the trial court for resentencing in accordance with the guidelines.

SCHEB, A.C.J., and LEHAN, J., concurs.

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Bluebook (online)

482 So. 2d 565, 11 Fla. L. Weekly 377, 1986 Fla. App. LEXIS 6264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nunez-v-state-fladistctapp-1986.

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