Categories: Florida Court Opinions

HERNANDEZ v. STATE, 539 So.2d 36 (Fla.App. 3 Dist. 1989)

SERGIO HERNANDEZ, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE.

No. 88-758.District Court of Appeal of Florida, Third District.
March 14, 1989.

An appeal from the Circuit Court for Monroe County; Richard J. Fowler, Judge.

Page 37

Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Joni B. Braunstein, Asst. Atty. Gen., for appellee.

Before JORGENSON, COPE and LEVY, JJ.

PER CURIAM.

Sergio Hernandez contends, and the state concedes, that the trial court erred in departing upwards from the presumptive sentencing guidelines range based upon Hernandez’s rejection of the trial court’s sentencing offer, see Fernandez v. State, 471 So.2d 642
(Fla. 3d DCA 1985); Fraley v. State, 426 So.2d 983
(Fla. 3d DCA 1983), rev. dismissed sub nom, Frazier v. State,
475 So.2d 694 (Fla. 1985), and the trial court’s erroneous finding of a continuing pattern of criminal conduct, see Gales v. State, 515 So.2d 431 (Fla. 4th DCA 1987). Accordingly, the sentence of three years’ incarceration is reversed, and the cause is remanded for resentencing.