Hallback v. State

479 So. 2d 865 (1985)

Calvin HALLBACK, Appellant,
v.
STATE of Florida, Appellee.

No. 85-257.

District Court of Appeal of Florida, Fifth District.

December 19, 1985.

Ricky R. Damerville, Orlando, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.

COBB, Chief Judge.

Hallback appeals his sentence of seven-and-a-half years' incarceration resulting from his guilty plea to six counts of dealing in stolen property, one count of delivery of cocaine and violation of probation. His score sheet gave a recommended guideline sentence of four-and-a-half to five-and-a-half years' incarceration, which was in the fifth cell. Included in the score sheet was the burglary for which he was on probation. This was scored as prior record. The trial court departed from the recommended sentence and sentenced Hallback to five years on each of the first seven offenses, to run concurrently, and thirty months to run consecutively for the burglary. This resulted in a sentence of seven-and-a-half years, which was in the eighth cell.

Initially, this case must be remanded under State v. Jackson, 478 So. 2d 1054 (Fla. 1985), as the basis for departure was not in writing. On remand, it should be noted by the trial court that it was improper to score the burglary as prior record. Rather, it should have been scored as an additional offense at conviction.^[1]See Bradley v. State, 480 So. 2d 647 (Fla. 2d DCA 1985), corrected opinion on rehearing, 10 FLW 2612 (Fla. 2d DCA Nov. 22, 1985). This will decrease the recommended sentence to the fourth cell. The lower court may wish to take advantage of Florida Rule of Criminal Procedure 3.701(d)(14), which provides for an increase of one cell for a probation violation without requiring a reason for departure.

REVERSED and REMANDED.

UPCHURCH and SHARP, JJ., concur.

NOTES

[1] Rule 3.701(d)(4) reads as follows:

Additional offenses at conviction: All other offenses for which the offender is convicted and which are pending before the court shall be scored as additional offenses based upon their degree and the number of counts of each. (Emphasis added.)