Mobley v. State, 88-01532

• Decision Date: 20 September 1989
• Docket Number: No. 88-01532,88-01532
• Citation: 548 So.2d 1180
• Court: Florida District Court of Appeals
• Parties: Lillie Bell MOBLEY, Appellant, v. STATE of Florida, Appellee.

Page 1180

548 So.2d 1180

Lillie Bell MOBLEY, Appellant, v. STATE of Florida, Appellee.

No. 88-01532.

District Court of Appeal of Florida, Second District.

Sept. 20, 1989.

James Marion Moorman, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

This is an appeal from a departure sentence. The appellant contends that the trial judge erred when he sentenced her upon a conviction for felony petit theft giving the following as the departure reasons: similar course of conduct; at least four to six prior convictions. The appellant's contention is based upon Hendrix v. State, 475 So.2d 1218 (Fla.1985), in that the departure reasons only constitute prior record, a factor already taken into consideration on the scoresheet. The state would have this case controlled by Williams v. State, 504 So.2d 392 (Fla.1987), which allowed a departure sentence based upon a pattern of criminal conduct and the time sequence of the commission of the offenses in relation to prior offenses and the defendant's release from incarceration or supervision. Inasmuch as the departure order which we review does not show any pattern beyond that of mere repetitiveness, unlike Williams, and only restates the fact that the appellant has previous convictions, we cannot distinguish this case from Hendrix. Therefore, we affirm the conviction but reverse the sentence; we remand for resentencing within the recommended guidelines range. Shull v. Dugger, 515 So.2d 748 (Fla.1987).

THREADGILL, A.C.J., ALTENBERND, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.