Varner v. State , 597 So. 2d 426 ( 1992 )

ALTENBERND, Judge,

concurring.

Although I find Judge Nimmons’ argument in Williams to be compelling, I agree that “threatening a witness prior to trial” is not a ground that can permit departure, if the conduct could be the basis for an information under section 914.22, Florida Statutes (1991).

I note that tampering with a witness is a third-degree felony. If the defendant had been separately charged and convicted of this offense, and then had been sentenced along with the present case, his guidelines score would have increased by only one point. This would not have affected the recommended sentence of up to 30 months’ incarceration or the permitted sentence of 3½ years’ incarceration. The three sentences imposed in this case totalled 15 years — three consecutive 5-year sentences. If a defendant’s actions could be the basis for a separate criminal offense, it seems untenable to allow it to justify a departure that exceeds the punishment for the separate offense.