Nunez v. State, 85-778

• Decision Date: 05 February 1986
• Docket Number: No. 85-778,85-778
• Citation: 482 So.2d 565,11 Fla. L. Weekly 377
• Parties: 11 Fla. L. Weekly 377 Carlos NUNEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 565

482 So.2d 565

11 Fla. L. Weekly 377

Carlos NUNEZ, Appellant, v. STATE of Florida, Appellee.

No. 85-778.

District Court of Appeal of Florida,

Second District.

Feb. 5, 1986.

James Marion Moorman, Public Defender and Douglas S. Connor, Asst. Public Defender, Bartow, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.

FRANK, Judge.

Carlos Nunez, who was convicted of and sentenced for possession of cocaine and possession of drug paraphernalia, urges us to vacate his sentence because the trial court relied upon impermissible reasons for departure from the guidelines. We agree.

Among the reasons expressed by the trial court for departure were an arrest for larceny, which had been dismissed, and the pendency of detainers for the defendant on similar criminal charges. The consideration of arrests for which no convictions have been obtained is improper. Fla.R.Crim.P. 3.701(d)(11). Furthermore, in branding the defendant an "irretrievable criminal" the judge focused primarily on past offenses that had been factored into the scoresheet and which therefore could not be used as a basis for departure. Hendrix v. State, 475 So.2d 1218 (Fla.1985).

Accordingly, we affirm the appellant's convictions but vacate the sentence and remand to the trial court for resentencing in accordance with the guidelines.

SCHEB, A.C.J., and LEHAN, J., concurs.