Campbell v. State , 486 So. 2d 61 ( 1986 )

486 So. 2d 61 (1986)

Wilbur Ellis CAMPBELL, Appellant,
v.
STATE of Florida, Appellee.

No. 85-855.

District Court of Appeal of Florida, Fourth District.

April 9, 1986.

Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Lee Rosenthal, Asst. Atty. Gen., West Palm Beach, for appellee.

WALDEN, Judge.

Wilbur Ellis Campbell was given a ten (10) year sentence. This was an enhancement — a departure from the recommended sentencing guidelines. The trial court based the departure upon these reasons:

1. Previous conviction of weapons charge — felony — shooting into occupied dwelling;

2. Defendant's total disregard of safety for others;

3. No remorse — jury totally disregarded self-defense;

4. Court firmly believes defendant will use firearm again.

Reason No. 1 has been termed as "double-dipping" because the prior conviction is already figured in the guidelines scoresheet. It is now the law of this state, per cases decided after the taking of this appeal, that since prior convictions are already factored in as a part of the presumptive guidelines sentence, they may not be used as a clear and convincing reason for departure. State v. Davis, 477 So. 2d 565 (Fla. 1985); State v. Williams, 477 So. 2d 570 (Fla. 1985); Hendrix v. State, 475 So. 2d 1218 (Fla. 1985).

Reason No. 2 has been found to be an acceptable reason. Harrington v. State, 455 So. 2d 1317 (Fla. 2d DCA 1984) and Williams v. State, 454 So. 2d 751 (Fla. 1st DCA 1984).

Reason Nos. 3 and 4 have been held to be insufficient reasons for departure. Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984) and Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984), approved by 477 So. 2d 565 (Fla. 1985).

Using the criteria found in Albritton v. State, 476 So. 2d 158 (Fla. 1985), we reverse the sentence and remand for resentencing in accordance with the views herein expressed.

As to the suggestion that a fine or costs were incorrectly imposed, the record does not support such allegation.

Reversed and Remanded.

DELL, J., and BOARDMAN, EDWARD F. (Retired), Associate Judge, concur.