From Casetext: Smarter Legal Research

Wilson v. State

District Court of Appeal of Florida, Second District
Jul 24, 1991
582 So. 2d 817 (Fla. Dist. Ct. App. 1991)

Opinion

No. 88-03326.

July 24, 1991.

Appeal from the Circuit Court, Hillsborough County, Manuel Menendez, Jr., J.

Henry G. Ennis, III, Tampa, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Jacqueline M. Valdespino, Asst. Atty. Gen., Miami, for appellee.


Appellant challenges his sentences for possession of cocaine and obstructing an officer without violence. We remand for resentencing.

After a jury found appellant guilty, the trial court sentenced him to five years in prison on the possession charge and one year in jail for the misdemeanor obstruction charge. The sentences are to be served consecutively. In imposing the sentences, the court departed from the guidelines for the reasons that appellant had involved a minor child in using cocaine and had involved the same minor child in having sexual activities with him. As the state correctly concedes on appeal, the trial court erred in departing upward based on appellant's conduct for which he was neither charged nor convicted. See Fla.R.Crim.P. 3.701(d)(11); Hallman v. State, 560 So.2d 223 (Fla. 1990); Bradley v. State, 509 So.2d 1137 (Fla. 2d DCA 1987).

Accordingly, we affirm appellant's convictions but vacate his sentences and remand for resentencing within the guidelines.

SCHEB, A.C.J., and RYDER and PATTERSON, JJ., concur.


Summaries of

Wilson v. State

District Court of Appeal of Florida, Second District
Jul 24, 1991
582 So. 2d 817 (Fla. Dist. Ct. App. 1991)
Case details for

Wilson v. State

Case Details

Full title:JAMES O'NEAL WILSON, A/K/A WILSON O'NEAL JAMES, APPELLANT, v. STATE OF…

Court:District Court of Appeal of Florida, Second District

Date published: Jul 24, 1991

Citations

582 So. 2d 817 (Fla. Dist. Ct. App. 1991)