Williams v. State, 501 So. 2d 191 (Fla. 5th DCA 1987). · Go Syfert
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Williams v. State, 501 So. 2d 191 (Fla. 5th DCA 1987). Cases Citing This Book View Copy Cite
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Diane D. WILLIAMS
v.
STATE of Florida
No. 86-1083.
District Court of Appeal of Florida, Fifth District.
Jan 29, 1987.
501 So. 2d 191
James B. Gibson, Public Defender, and Michael L. O’Neill, Asst. Public Defender, Daytona Beach, for appellant., Robert A. Butterworth, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for appellee.
Cobb, Dauksch, Upchurch.
Cited by 1 opinion  |  Published
COBB, Judge.

The appellant, Diane D. Williams, was convicted of second-degree grand theft and sentenced to ten years in prison, exceeding her guidelines sentence and double the statutory maximum, based upon a finding that she was an habitual offender. The trial court listed the following reasons for departure:

1. The habitual offender determination.
2. Necessity for protection of the public, citing Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984).
3. Eight municipal code convictions that were not scored, and for which there were no analogous criminal statutes.

None of these reasons supports a departure sentence. The first reason has recently been invalidated by Whitehead v. State, 498 So.2d 863, 11 FLW 553 (Fla.1986). Insofar as “protection of the public” is merely a reference to prior record, it cannot be used as a basis for departure under Hendrix v. State, 475 So.2d 1218 (Fla.1985). Finally, we do not believe that municipal code violations, which are not considered serious enough to be scored under prior record, can serve as a clear and convincing reason for departure.

REVERSED and REMANDED for sentencing in accordance with the guidelines.

UPCHURCH, C.J., and DAUKSCH, J., concur.