
    Juan CINTRON, Appellant, v. STATE of Florida, Appellee.
    No. 90-3365.
    District Court of Appeal of Florida, Fourth District.
    July 31, 1991.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and Melvina Racey Flaherty, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Juan Cintron pled nolo contendere to a charge of possession of contraband in a state correctional institution.

As conceded by the state, the trial court erred in scoring the defendant's prior conviction for first degree murder as a capital felony upon defendant’s sentencing guidelines scoresheet. See Section 921.001(4)(a), Florida Statutes (1989); Stuart v. State, 536 So.2d 363 (Fla. 2d DCA 1988).

Finally, we disagree with the state that the trial court can now depart upward from the sentencing guideline sentence. This is so because here there was a negotiated plea agreement between the parties to limit the sentence. Moreover, there was no departure originally and the trial court cannot now undertake to depart citing new reasons. See Shull v. Dugger, 515 So.2d 748 (Fla.1987); Wyche v. State, 576 So.2d 884 (Fla. 1st DCA 1991); Owens v. State, 563 So.2d 180 (Fla. 1st DCA 1990).

REVERSED AND REMANDED.

GLICKSTEIN, C.J., ANSTEAD, J., and JAMES H. WALDEN, Senior Judge, concur.  