Opinion
No. 86-2721.
April 1, 1988.
Appeal from the Circuit Court for Lee County; R. Wallace Pack, Judge.
James Marion Moorman, Public Defender and Robert F. Moeller, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and David R. Gemmer, Asst. Atty. Gen., Tampa, for appellee.
Appellant pleaded nolo contendere to a charge of retail theft. He does not challenge his conviction, which we affirm. In this appeal, he raises two issues concerning his sentencing. Both issues have been previously addressed by this court.
Appellant's first argument is that the trial court's sole reason for departing from the guidelines — lying about his prior record — is invalid. This court has previously decided this issue in appellant's favor. Smith v. State, 516 So.2d 78 (Fla. 2d DCA 1987); Davis v. State, 509 So.2d 1329 (Fla. 2d DCA 1987); Anderson v. State, 503 So.2d 388 (Fla. 2d DCA 1987); Denson v. State, 493 So.2d 60 (Fla. 2d DCA 1986). Accordingly, we reverse appellant's sentence and remand for resentencing within the guidelines. See Shull v. Dugger, 515 So.2d 748 (Fla. 1987).
Appellant's second argument on appeal is that the trial court erred in scoring an alleged uncounseled conviction on the sentencing guidelines scoresheet. After reviewing the record in this case, we hold that appellant did not make a prime facie case that the prior conviction was uncounseled. Therefore, the trial court was correct in scoring the conviction on the scoresheet. See Croft v. State, 513 So.2d 759 (Fla. 2d DCA 1987).
In summary, appellant's conviction, his sentencing guidelines scoresheet and its scoring stand; the trial court's departure falls. We remand for resentencing within the guidelines.
Affirmed in part; reversed in part and remanded with instructions.
LEHAN and HALL, JJ., concur.