Washington v. State

500 So. 2d 316, 12 Fla. L. Weekly 164, 1986 Fla. App. LEXIS 11620

Opinion

SCHEB, Judge.

Defendant Charlie Lee Washington was convicted of two counts of grand theft and burglary. At the sentencing hearing, the assistant state attorney announced that he had calculated the defendant’s sentence to be twelve to thirty months’ incarceration based on the sentencing guidelines score-sheet. The trial court noted that this was in error, announced that it was going to “depart” and sentenced the defendant to prison for five years. Defendant’s appeal raises two points, each relating to his sentence. First, he argues that the scoresheet was not properly prepared and, second, that the trial judge improperly departed from the recommended guidelines sentence.

As to the defendant’s first point, the state concedes the scoresheet was improperly prepared. As to the defendant’s second point, the court gave five written reasons for departure, none of which are valid. The defendant’s previous record and the fact that he was on two probations are invalid reasons because they are already factored into the presumptive guidelines sentence. Hendrix v. State, 475 So.2d 1218 (Fla.1985). The fact that the defendant assaulted an officer while on probation is invalid because it is a factor relating to the instant offenses for which a conviction has not been obtained. Fla.R.Crim.P. 3.701(d)(ll). Finally, the protection of society and the fact that the defendant committed perjury are also invalid reasons. See Williams v. State, 493 So.2d 48 (Fla. 2d DCA 1986); Guerrero v. State, 484 So.2d 59 (Fla. 2d DCA 1986).

Accordingly, we affirm the defendant’s convictions but we vacate his sentence. We remand for the preparation of a new scoresheet and resentencing within the guidelines.

GRIMES, A.C.J., and FRANK, J., concur.