Dallas v. State , 490 So. 2d 1362 ( 1986 )

490 So.2d 1362 (1986)

Bobby Amos DALLAS, Appellant,
v.
STATE of Florida, Appellee.

No. 85-1673.

District Court of Appeal of Florida, Fifth District.

July 10, 1986.

James B. Gibson, Public Defender, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Jim Easley, Asst. Atty. Gen., Daytona Beach, for appellee.

UPCHURCH, Chief Judge.

Bobby Dallas appeals from a sentence imposed after a negotiated plea. Dallas had been charged with kidnapping, robbery, two counts of aggravated assault, second degree grand theft, two counts of attempted first degree murder, two counts of shooting into a building and use of a firearm while committing or attempting to commit a felony.

Under the plea agreement, Dallas pleaded no contest to kidnapping, robbery, aggravated assault and use of a firearm while committing a felony and in return the state nol prossed the remaining charges. There was no agreement as to any particular sentence, and the state specified that it would recommend a sentence of forty years which exceeded the recommended guideline sentence of nine to twelve years imprisonment.

The court imposed a forty year sentence, giving as its reasons:

Defendant jeopardized safety of numerous people by driving his vehicle in excess of 85 m.p.h. down public highways while being pursued by police and fired his weapon at a Florida Highway Patrol trooper during the chase by police officers. The shot penetrated an occupied mobile home creating an extreme risk to the physical safety of both citizens and law enforcement officers.

This departure is invalid since the reasons were factually based on the charges which were dropped as part of a plea agreement. Cummings v. State, 489 So.2d 121 (Fla. 1st DCA, 1986); Baxter v. State, 488 So.2d 647 (Fla. 5th DCA, 1986).

REVERSED and REMANDED for resentencing.

DAUKSCH and ORFINGER, JJ., concur.