guidelines shall not include factors in Florida

1984Compare Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984) (violation of a substantive condition of probation a "clear and convincing reason" for departure from the guidelines.) [2] As amended, the rule now provides, in part: "Reasons for deviating from the guidelines shall not include factors relating to prior arrests without conviction." The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So.2d 824 (Fla. 1984).

1984NOTES [1] Because we find that the deviation from the sentencing guidelines in the present case is permissible based upon the trial court's consideration of factors attending the offenses for which appellants were convicted, we do not address appellee's further assertion that Rule 3.701(d)(11) should not preclude consideration of charges which are dismissed pursuant to plea bargain agreements. [2] See In Re Rules of Criminal Procedure, 439 So.2d 848 (Fla. 1983). [3] See Amendment to Rules of Criminal Procedure, 451 So.2d 824 (Fla. 1984). [1] The revision to subsection d.11. states: Reasons for

1988Florida Rule of Criminal Procedure 3.701(d)(11) provides that "[r]easons for deviating from the guidelines shall not include factors relating to the instant offenses for which convictions have not been obtained." As in Sloan v. State, 472 So.2d 488, 490 (Fla.2d DCA 1985), approved in part quashed in part, 491 So.2d 276 (Fla. 1986), we must hold that "[t]he presence of that comment within the stated [grounds for departure] more than supports our view that the trial court, at the very least, found the higher crime, for which there was no conviction, a significant element in the determination to

1986Florida Rule of Criminal Procedure 3.701(d)(11) provides that "[r]easons for deviating from the guidelines shall not include factors relating to the instant offenses for which convictions have not been obtained." As in Sloan v. State, 472 So.2d 488, 490 (Fla. 2d DCA 1985), approved in part, quashed in part, 491 So.2d 276 (Fla. 1986), we must hold that "[t]he presence of that comment within the stated [grounds for departure] more than supports our view that the trial court, at the very least, found the higher crime, for which there was no conviction, a significant element in the determination t

1985This Court's adoption of the sentencing guidelines was established in In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla. 1983).

1984NOTES [1] Because we find that the deviation from the sentencing guidelines in the present case is permissible based upon the trial court's consideration of factors attending the offenses for which appellants were convicted, we do not address appellee's further assertion that Rule 3.701(d)(11) should not preclude consideration of charges which are dismissed pursuant to plea bargain agreements. [2] See In Re Rules of Criminal Procedure, 439 So.2d 848 (Fla. 1983). [3] See Amendment to Rules of Criminal Procedure, 451 So.2d 824 (Fla. 1984). [1] The revision to subsection d.11. states: Reasons for

1997See Fla.R.Crim.P. 3.701; State v. Colbert, 660 So.2d 701 (Fla.1995); Jones; Robertson v. State, 611 So.2d 1228, 1234 (Fla.1993)("This Court has held that it is reversible error for a court to give a departure sentence without providing written reasons for the departure."); Pope v. State, 561 So.2d 554 (Fla. 1990).

1997See Fla.R.Crim.P. 3.701; State v. Colbert, 660 So.2d 701 (Fla.1995); Jones; Robertson v. State, 611 So.2d 1228, 1234 (Fla.1993)("This Court has held that it is reversible error for a court to give a departure sentence without providing written reasons for the departure."); Pope v. State, 561 So.2d 554 (Fla. 1990).

1992The Lettman court reasoned: Rule 3.701(d)(ll), Florida Rules of Criminal Procedure, provides that ‘[Reasons for deviating from the guidelines shall not include factors relating to prior arrests without conviction.’ Since [the defendant] has not previously been convicted of child abuse, never having been charged, this cannot be used as a reason for departure. 526 So.2d at 208 .

1992We distinguish Lerma v. State, 497 So.2d 736 (Fla.1986), because there the uncharged act, which justified the departure sentence, took place at the same time the defendant committed the crime for which he was convicted.

1989See State v. Tyner, 506 So.2d 405, 406 (Fla.1987) (where murder charges dismissed, deaths which occurred as a direct result of burglary improper reason for departure); Johnson v. State, 524 So.2d 1153 (Fla. 3d DCA 1988) (where departure reasons “relate entirely to a crime for which the defendant was acquitted by the jury,” reasons cannot be used as basis for departing from the guidelines on convicted offense); Johnson v. State, 517 So.2d 792 (Fla. 3d DCA 1988) (factor relating to offense for which convictions not obtained improper basis for departure); Vega v. State, 498 So.2d 1294, 1296 (Fla.

1989See State v. Tyner, 506 So.2d 405, 406 (Fla.1987) (where murder charges dismissed, deaths which occurred as a direct result of burglary improper reason for departure); Johnson v. State, 524 So.2d 1153 (Fla. 3d DCA 1988) (where departure reasons “relate entirely to a crime for which the defendant was acquitted by the jury,” reasons cannot be used as basis for departing from the guidelines on convicted offense); Johnson v. State, 517 So.2d 792 (Fla. 3d DCA 1988) (factor relating to offense for which convictions not obtained improper basis for departure); Vega v. State, 498 So.2d 1294, 1296 (Fla.

1988Although in some instances an abuse of familial/custodial authority may be deemed to be a valid departure reason, see e.g., Williams v. State, 462 So.2d 36 (Fla. 1st DCA 1984), review denied, 471 So.2d 44 (Fla.1985), this reason must be disallowed in the instant case.

1988In Lambert v. State, 517 So.2d 133 (Fla. 4th DCA 1987), rev. granted, Case No. 71,890 (Fla. Feb. 10, 1988) the Fourth District Court of Appeal held that a conviction of the subsequent offense was not necessary to the supreme court holding in Pentaude and, conflicting with Tuthill , upheld a departure sentence imposed on a prior offense based on a subsequent offense which was found to have violated conditions of probation but for which the defendant had not been convicted.

1987In Santiago v. State, 478 So.2d 47 (Fla.1985), the court held that reasons for deviating from the guidelines shall not include factors relating to either the instant offense or prior arrests for which convictions have not been obtained.

1986These reasons given for the departure relate to the charges of which the defendant was acquitted and contravene Florida Rule of Criminal Procedure 3.701(d)(ll) which provides that reasons for deviating from the guidelines shall not include factors relating to prior arrests without conviction or factors relating to the instant offenses for which convictions have not been obtained. 2 See Brown v. State, 480 So.2d 225 (Fla. 5th DCA 1985); Weaver v. State, 475 So.2d 1365 (Fla. 2d DCA 1985); Fletcher v. State, 457 So.2d 570 (Fla. 5th DCA 1984).

1986E.g., Harrington v. State, 455 So.2d 1317 (Fla. 2d DCA 1984) (aggravated assault); Bailey v. State, 485 So.2d 482 (Fla. 3d DCA 1986) (shooting within a private building); Parker v. State, 478 So.2d 823 (Fla. 2d DCA 1985) (battery).

1986Scurry v. State, 490 So.2d 223 (Fla.1986).

1986These reasons given for the departure relate to the charges of which the defendant was acquitted and contravene Florida Rule of Criminal Procedure 3.701(d)(ll) which provides that reasons for deviating from the guidelines shall not include factors relating to prior arrests without conviction or factors relating to the instant offenses for which convictions have not been obtained. 2 See Brown v. State, 480 So.2d 225 (Fla. 5th DCA 1985); Weaver v. State, 475 So.2d 1365 (Fla. 2d DCA 1985); Fletcher v. State, 457 So.2d 570 (Fla. 5th DCA 1984).

1986E.g., Harrington v. State, 455 So.2d 1317 (Fla. 2d DCA 1984) (aggravated assault); Bailey v. State, 485 So.2d 482 (Fla. 3d DCA 1986) (shooting within a private building); Parker v. State, 478 So.2d 823 (Fla. 2d DCA 1985) (battery).

1986These reasons given for the departure relate to the charges of which the defendant was acquitted and contravene Florida Rule of Criminal Procedure 3.701(d)(ll) which provides that reasons for deviating from the guidelines shall not include factors relating to prior arrests without conviction or factors relating to the instant offenses for which convictions have not been obtained. 2 See Brown v. State, 480 So.2d 225 (Fla. 5th DCA 1985); Weaver v. State, 475 So.2d 1365 (Fla. 2d DCA 1985); Fletcher v. State, 457 So.2d 570 (Fla. 5th DCA 1984).

1986E.g., Harrington v. State, 455 So.2d 1317 (Fla. 2d DCA 1984) (aggravated assault); Bailey v. State, 485 So.2d 482 (Fla. 3d DCA 1986) (shooting within a private building); Parker v. State, 478 So.2d 823 (Fla. 2d DCA 1985) (battery).

1985Appellee argues, based on additional comments by the sentencing judge which appear in the transcript of sentencing hearing, that the departure was justified because appellant had engaged in a crime binge, citing Manning v. State, 452 So.2d 136 (Fla. 1st DCA 1984) and Garcia v. State, 454 So.2d 714, 716 (Fla. 1st DCA 1984).