State v. Davis

477 So. 2d 565 (1985)

STATE of Florida, Petitioner, v. Robert Gene DAVIS, Respondent.

No. 66081.

Supreme Court of Florida.

October 17, 1985.

Jim Smith, Atty. Gen. and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for petitioner.

Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for respondent.

OVERTON, Justice.

This is a petition to review Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984), remanding respondent's case for resentencing because the trial court used both permissible and impermissible reasons to depart from the sentencing guidelines. The district court certified the following question as a matter of great public importance:

If the scoresheets make provision for prior convictions, can those convictions also constitute clear and convincing reasons for aggravated punishment outside the guidelines?

Id. at 44. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

We answered that question in Hendrix v. State, 475 So. 2d 1218 (Fla. 1985), in which we held 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. See also Deer v. State, 476 So. 2d 163 (Fla. 1985); Gregory v. State, 475 So. 2d 1221 (Fla. 1985).

Accordingly, we approve the decision of the district court.

It is so ordered.

BOYD, C.J., and ADKINS, McDONALD, EHRLICH and SHAW, JJ., concur.