Walker v. State, 87-1116

• Decision Date: 09 February 1988
• Docket Number: No. 87-1116,87-1116
• Citation: 13 Fla. L. Weekly 385,519 So.2d 1105
• Parties: 13 Fla. L. Weekly 385 Willie J. WALKER, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1105

519 So.2d 1105

13 Fla. L. Weekly 385

Willie J. WALKER, Appellant, v. The STATE of Florida, Appellee.

No. 87-1116.

District Court of Appeal of Florida Third District.

Feb. 9, 1988.

Bennett H. Brummer, Public Defender, and Marti Rothenberg and Thomas G. Murray, Jr., Asst. Public Defenders, for appellant.

Robert A. Butterworth, Atty. Gen., and Julie S. Thornton, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and HUBBART and DANIEL S. PEARSON, JJ.

PER CURIAM.

We reverse the ten-year sentence of confinement imposed upon the defendant and remand the case to the trial court for the imposition of a sentence within the recommended guideline range of 4- 1/2 to 5- 1/2 years. The trial court's stated reasons for its upward departure from the sentencing guidelines were that (1) the defendant has an extensive record of "arrests and convictions as a juvenile offender ... not calculated in the scoresheet," (2) the defendant committed crimes "shortly after being released from incarceration," and (3) the greater sentence is "necessary to protect the public from [the defendant's] continuing crimes."

First, as the State with commendable candor concedes, there is no record support for the trial court's finding that the defendant had an extensive unscored record of juvenile convictions or that he committed crimes "shortly after being released from incarceration." The record reflects only a single prior juvenile conviction some four and one-half years earlier, which does not constitute a clear and convincing reason for departure. ¹ See Weems v. State, 469 So.2d 128 (Fla.1985) (extensive unscored juvenile convictions); Carter v. State, 510 So.2d 930 (Fla. 5th DCA 1987) (significant unscored juvenile record). Second, the trial court's statement that the greater sentence was "necessary to protect the public from [the defendant's] continuing crimes" is not a valid reason for departure because the only evidence to support this statement is the defendant's prior record, which has already been factored in in computing the recommended punishment. Williams v. State, 492 So.2d 1308 (Fla.1986); Hendrix v. State, 475 So.2d 1218 (Fla.1985). See Hudson v. State, 504 So.2d 2 (Fla. 2d DCA 1986) (threat to society impermissible); Thorne v. State, 496 So.2d 891 (Fla. 2d DCA 1986) (threat to society impermissible reason to depart); Dowling v. State, 495 So.2d 874 (Fla. 5th DCA 1986) (reason that "the departure is necessary for the protection of society" is impermissible); Frank v. State, 490 So.2d 190 (Fla. 2d DCA 1986) (...