STATE v. WOODSON (1999)

This is an appeal from a downward departure sentence.   The trial court gave two reasons for the departure.   First, that the need for restitution out-weighed the benefit of imprisonment.   Second, that appellee was a minor participant in the crimes.   Neither reason is supported by a factual basis and thus must be discounted.   This appellee was a felon on probation when he was charged in this case with burglary, grand theft and dealing in stolen property.   He pleaded guilty, in accordance with a negotiated plea, to violation of probation and three counts of dealing in stolen property.   In exchange for the plea, the burglary charges were dropped.   No agreement was made concerning the sentence.   Because there is no evidence to support the finding that restitution outweighs the need for a guidelines sentence and because it is clear this multi-offender fits the profile of those who need to be segregated from the general public, it was error to allow him to stay out of prison.   He was not a minor participant, he admitted being a dealer in stolen property and the facts support his having been the burglar and thief.

The sentence is vacated and this cause remanded for a sentence in accordance with the guidelines.

SENTENCE VACATED;  REMANDED.

DAUKSCH, J.

ANTOON, C.J., and HARRIS, J., concur.