CONFESSION OP ERROR

The State properly concedes that the trial court erred in sentencing the defendant. The defendant was found guilty of burglary of a structure and grand theft. The sentencing guidelines call for any nonstate prison sanction. The trial court, however, sentenced the defendant to three years in prison followed by five years probation on each count to run concurrently. At the sentencing hearing, the trial court stated that it exceeded the sentencing guidelines because during the course of the trial the defendant had allegedly committed grand theft. The defendant, however, had not been tried for this offense. Additionally, the trial court failed to enter a written order.

The sentencing guidelines expressly prohibit trial courts from considering offenses for which defendants have not yet been convicted. Fla.R.Crim.P. 3.701(d)(ll). Moreover, the guidelines require that any sentence outside of the guidelines must be accompanied by a written statement delineating the reasons for departure. Fla.R. Crim.P. 3.701(d)(ll). The trial court did not comply with Rule 3.701(d)(ll), Florida Rules of Criminal Procedure.

Accordingly, we reverse and remand with directions to sentence the defendant within the sentencing guidelines.

(specially concurring).

I agree with the holding of the majority opinion. I write separately only to note that the recent Florida Supreme Court case of Pope v. State, 561 So.2d 554 (Fla. 1990), makes it clear that when the trial court fails to make any written findings supporting a departure sentence, imposed upon a defendant after trial, that sentence must be reversed and the case remanded for re-sentencing within the guidelines.