
    Joe Lewis THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 88-156.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1988.
    
      James B. Gibson, Public Defender, and Glen P. Gifford, Asst. Public Defender, Daytona Beach, for appellant.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and Colin Campbell, Asst. Atty, Gen., Daytona Beach, for appellee.
   SHARP, Chief Judge.

Thomas appeals from his sentence of five years imprisonment after his conviction of perjury. In compiling Thomas' scoresheet at the sentencing hearing, the trial court included twenty-four points for being under “legal constraint” at the time Thomas committed the perjury offense. These additional points put Thomas in the four and one-half to five and one-half year sentencing bracket. Without them, he would be in the three and one-half to four and one-half year bracket, and his five year sentence would constitute a “departure” sentence for which no reasons were articulated.

We agree with Thomas that the twenty-four points for legal constraint under “legal status at time of offense” should not have been assessed in this case. The basis for their inclusion was that Thomas committed the perjury while he was on trial for other offenses (grand theft of a motor vehicle and resisting an officer without violence).

Florida Rule of Criminal Procedure 3.701.d.6. specifically lists categories of “legal constraint” under the definition of “legal status”:

Legal status at time of offense is defined as follows: Offenders on parole, probation or community control; in custody serving a sentence; escapees; fugitives who have fled to avoid prosecution or who have failed to appear for a criminal judicial proceeding or who have violated conditions of a supersedeas bond; and offenders in pretrial intervention or diversion programs.

If a defendant falls within one of the listed categories, twenty-four points should be added to the total score. If he or she does not fall into one of those categories, and is under no legal restriction at the time of the commission of the offense, (the state concedes Thomas was not in this appeal), the rule requires that no points be assessed for category IV “legal status.” Fla.R.Crim.P. 3.701.d.6. Accordingly, we reverse the sentence and remand for resentencing.

REVERSED and REMANDED for re-sentencing.

ORFINGER, J., concurs.

DAUKSCH,. J., concurs specially with opinion.

DAUKSCH, Judge,

concurring specially.

While I agree this appellant was illegally sentenced I note the state has conceded the point. In my opinion this matter could have been resolved without the full appellate review. When it was recognized by the state that error had occurred then the common-place request for a relinquishment of jurisdiction could have allowed the case to return to the sentencing judge for correction of the error. 
      
      . § 837.02(1), Fla.Stat. (1987).
     
      
      . Fla.R.Crim.P. 3.701.A6.
     