Myrick v. State

• Decision Date: 14 November 1986
• Docket Number: 85-293 and 85-294,Nos. 85-292,s. 85-292
• Citation: Myrick v. State, 497 So.2d 728, 11 Fla. L. Weekly 2386 (Fla. App. 1986)
• Parties: 11 Fla. L. Weekly 2386 Bobby MYRICK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 728

497 So.2d 728

11 Fla. L. Weekly 2386

Bobby MYRICK, Appellant, v. STATE of Florida, Appellee.

Nos. 85-292, 85-293 and 85-294.

District Court of Appeal of Florida Second District.

Nov. 14, 1986.

James Marion Moorman, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Tampa, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

In these consolidated sentencing guidelines cases, the appellant, Bobby Myrick, appeals the sentences imposed by the trial court. We find that the trial court's written reasons for departing from the guidelines when sentencing the appellant include both permissible and impermissible reasons, and we, therefore, reverse and remand for resentencing.

The underlying offenses in this case are one count of breaking and entering with intent to commit grand larceny and two counts of uttering a forged instrument. When appellant's probation for these offenses was revoked in 1984, he elected guideline sentencing. The trial court prepared a written statement containing reasons for departure and sentenced the appellant to serve three consecutive five-year terms in the state prison. The trial court imposed these sentences without first preparing a guidelines scoresheet. Upon appeal of that sentencing, the case was reversed and remanded for preparation of a guidelines scoresheet followed by resentencing. See Myrick v. State, 461 So.2d 1359 (Fla. 2d DCA 1984).

The sentencing guidelines scoresheet which was ultimately prepared reflected a sentence range of community control or twelve to thirty months incarceration. With the one cell enhancement allowed for violation of probation, the reflected range was two-and-one-half to three-and-one-half years of incarceration. At the resentencing hearing, however, the trial court again departed from the guidelines and once again sentenced appellant to serve three consecutive five-year sentences. The same written reasons for departure that were used in the original sentencing were used at appellant's resentencing.

The written statement reflected that the trial judge based his decision to sentence the appellant outside the sentencing guidelines on the appellant's violation of his probation as well as on appellant's criminal history. Appellant's violation of probation, however, is an invalid reason to enhance appellant's sentence more than the one cell permitted by Florida Rule of Criminal Procedure 3.701(d)(14). See Wigfals v. State, 480 So.2d 259 (Fla. 2d DCA 1986). Furthermore, appellant's criminal history included both valid and invalid reasons for departure. For instance, the juvenile offenses appellant...