Spells v. State

482 So. 2d 608, 11 Fla. L. Weekly 435, 1986 Fla. App. LEXIS 6361

Opinion

ORFINGER, Judge.

The defendant appeals from a departure sentence of 4 years’ imprisonment following the entry of a guilty plea to second degree grand theft and prostitution. The recommended guideline sentence was any non-state prison sanction.

The written reasons stated for departure were:

This defendant is a confirmed habitual prostitute and thief. Although only 21 yrs old she has at least 5 prior prostitution related offenses and 4 other misdemeanor offenses.

These reasons are very similar to those disapproved by this court in Bentley v. State, 477 So.2d 58 (Fla. 5th DCA 1985),¹ on the reasoning of Hendrix v. State, 475 So.2d 1218 (Fla.1985). Hendrix rejects departure sentences based solely on matters which are already factored into the guidelines calculation, so departures based solely on a defendant’s prior record are improper.

The sentence is vacated and the cause is remanded to the trial court with directions to sentence defendant in accordance with the guidelines, absent clear and convincing reasons for departure.

REVERSED and REMANDED.

DAUKSCH and COWART, JJ„ concur.

1 . The reasons for departure in Bentley were: The defendant has seventeen prior felony convictions. As late as 1979 he received thirty years as an habitual offender. Since then he has received two armed robbery convictions. He should not be released from prison.