Daies v. State

ERVIN, Judge. This is an appeal from the final conviction and sentence of the appellant under Section 843.15, Florida Statutes (1987), for failure to appear for felony trial proceedings. We affirm the appellant’s conviction, and reverse the sentence and remand with directions. The appellant was assessed twenty-four points for being under legal constraint when he failed to appear at trial. However, the legal constraint at issue was an element of the primary offense and therefore did not justify the assessment of additional points. Brown v. State, 502 So.2d 1293, 1294 (Fla. 1st DCA 1987). Based upon the erroneous inclusion of the twenty-four points, the trial court sentenced the appellant within the recommended range. Because the score is now shown to be incorrect, resulting in what amounts to an upward departure without written reasons, the trial court may on remand impose a departure sentence if it so desires. Roberts v. State, 547 So.2d 129 (Fla.1989). NIMMONS and ZEHMER, JJ., concur.