482 So. 2d 608 - Spells v. State

ORFINGER, Judge.

¶1The 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.

¶2The 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.

¶3These 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). Hendrixrejects 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.

¶4The 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.

¶5REVERSED and REMANDED.

DAUKSCH and COWART, JJ„ concur.

¶6. The reasons for departure in Bentleywere: 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.