Wilson v. State

582 So. 2d 817, 1991 Fla. App. LEXIS 7489, 1991 WL 136863

Opinion

PER CURIAM.

Appellant challenges his sentences for possession of cocaine and obstructing an officer without violence. We remand for resentencing.

After a jury found appellant guilty, the trial court sentenced him to five years in prison on the possession charge and one year in jail for the misdemeanor obstruction charge. The sentences are to be served consecutively. In imposing the sentences, the court departed from the guidelines for the reasons that appellant had involved a minor child in using cocaine and had involved the same minor child in having sexual activities with him. As the state correctly concedes on appeal, the trial court erred in departing upward based on appellant’s conduct for which he was neither charged nor convicted. See Fla.R.Crim.P. 3.701(d)(ll); Hallman v. State, 560 So.2d 223 (Fla.1990); Bradley v. State, 509 So.2d 1137 (Fla. 2d DCA 1987).

Accordingly, we affirm appellant’s convictions but vacate his sentences and remand for resentencing within the guidelines.

SCHEB, A.C.J., and RYDER and PATTERSON, JJ., concur.