Hudson v. State

504 So. 2d 2 (1986)

John Daniel HUDSON, Appellant,
v.
STATE of Florida, Appellee.

Nos. 86-795, 86-796.

District Court of Appeal of Florida, Second District.

November 14, 1986. Rehearing Denied February 12, 1987.

James Marion Moorman, Public Defender, Bartow, and Karla Foreman Wright, Asst. Public Defender, Tampa, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Defendant appeals from his sentences for possession and delivery of drugs and contends that there were impermissible reasons for the trial court's departure from the presumptive sentencing range under the guidelines. We agree and reverse.

The trial court's reason that the defendant, while on probation, was in possession of cocaine under circumstances indicating that he was selling cocaine was impermissible because it related to an offense for which a conviction was not obtained. See Dawkins v. State, 487 So. 2d 63 (Fla. 2d DCA 1986). The trial court's reason that the defendant was a threat to society was impermissible. See Martinez-Diaz v. State, 484 So. 2d 633 (Fla. 2d DCA 1986).

Reversed and remanded for sentencing within the presumptive guidelines range or one cell higher for the violation of probation.

CAMPBELL, A.C.J., and LEHAN and FRANK, JJ., concur.