Pertee v. State

496 So. 2d 964, 11 Fla. L. Weekly 2288, 1986 Fla. App. LEXIS 10418

Opinion

THOMPSON, Judge.

This is an appeal from judgments and sentences entered upon appellant’s pleas of guilty to multiple charges of forgery, uttering, passing worthless checks and grand theft. We affirm the convictions, but reverse the sentences and remand.

The trial court’s reasons for departing from the recommended guidelines sentence were as follows:

1) The Defendant has an extensive record and history of obtaining money by writing worthless checks which establishes a pattern of conduct for over eleven years of continuous and serious threat to the community.

2) The Defendant has established a pattern of committing new crimes while other criminal charges are pending against him.

3) Probation has not been a successful deterrent to the Defendant.

4) The Defendant absconded while awaiting sentencing.

None of the reasons stated are valid permissible reasons for imposing a sentence exceeding the sentence recommended by the sentencing guidelines. The first two reasons given are factually based on appellant’s prior record, and therefore cannot support departure. Williams v. State, 492 So.2d 1308 (Fla.1986); Hendrix v. State, 475 So.2d 1218 (Fla.1985). Reason four relates to a crime for which appellant has not been convicted and thus is a reason prohibited by the guidelines themselves. Fla.R.Crim.P. 3.701(d)(11); State v. Mischler, 488 So.2d 523 (Fla.1986). The third reason is also invalid because the recommended guidelines sentence calls for only incarceration and not probation. Williams v. State, 490 So.2d 1026 (Fla. 1st DCA 1986).

REVERSED and REMANDED for re-sentencing.

JOANOS and NIMMONS, JJ., concur.