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500 So. 2d 316

500 So.2d 316

12 Fla.L.Weekly 164

Washington v. State

District Court of Appeal of Florida

Decided December 30, 1986

District Court of Appeal of Florida · decided 1986-12-30

Cited by 1 later decisions — most recently February 1987

1 state decisions

Relies on 475 So. 2d 1218 - Hendrix v. State · 484 So. 2d 59 - Guerrero v. State · 493 So. 2d 48 - Williams v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1986-12-30

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SCHEB, Judge.

¶1Defendant 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.

¶2As 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).

¶3Accordingly, 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.
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