Napoles v. State, AW-326

• Decision Date: 07 February 1985
• Docket Number: No. AW-326,AW-326
• Citation: Napoles v. State, 463 So.2d 478, 10 Fla. L. Weekly 337 (Fla. App. 1985)
• Parties: 10 Fla. L. Weekly 337 Humberto Hernandez NAPOLES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 478

463 So.2d 478

10 Fla. L. Weekly 337

Humberto Hernandez NAPOLES, Appellant, v. STATE of Florida, Appellee.

No. AW-326.

District Court of Appeal of Florida First District.

Feb. 7, 1985.

Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.

Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Appellant challenges the trial court's departure from the recommendation of the sentencing guidelines, urging that the court failed to provide sufficiently clear and convincing reasons for its departure as required by Fla.R.Crim.P. 3.701 d.11. We reverse.

The Court imposed an 18 month sentence rather than following the guidelines recommendation of "any nonstate prison sanction." We agree that five of the six reasons for departure provided by the trial court by way of a "checklist" are inadequate. Alford v. State, 460 So.2d 1000 (Fla. 1st DCA 1984). The remaining reason checked: "Number of times offender previously given probation after conviction," merits some discussion. The reason is clearly improper as the record reveals that appellant had been on probation only once: at the time he committed the instant offense. The guidelines computation sheet reflects that this fact was already taken into consideration in computing the recommended sentence. Therefore, it should not be utilized as an aggravating factor in departing from the guidelines. Burch v. State, 462 So.2d 548 (Fla. 1st DCA 1985).

Although in Alford, this court...