Opinion
No. BP-377.
July 21, 1987. On Motion for Rehearing September 9, 1987.
Appeal from the Circuit Court, Duval County, Bill Parsons, J.
Michael E. Allen, Public Defender; P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen.; Maria Ines Suber, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant seeks review of the trial court's order sentencing him outside the guidelines for the commission of aggravated battery, kidnapping, and two counts of sexual battery. A guidelines scoresheet was prepared indicating a total score of 440 points and a recommended sentencing range of 17-22 years imprisonment. The trial court imposed the following sentences: 15 years for aggravated battery; life for kidnapping, sentence to run consecutively, and 30 years each for the two counts of sexual battery, sentences to run concurrently with the life sentence. The trial court gave as its written reason for departure the following:
The recommended guidelines sentence is insufficient to properly rehabilitate defendant, protect society and provide retribution.
Since entry of the trial court's order in the present case, the Florida Supreme Court has held that the above statement can never be a reason for departing from the recommended sentencing guidelines. See Scott v. State, 508 So.2d 335 (Fla. 1987).
Therefore, the sentence is vacated and the case remanded for resentencing in accordance with this opinion.
ERVIN and BOOTH, JJ., concur.
ON MOTION FOR REHEARING
Appellant seeks rehearing on this court's opinion released July 21, 1987, alleging that on remand the trial court should have been directed to impose a guidelines sentence as a result of the departure reason having been declared invalid, citing Williams v. State, 492 So.2d 1308 (Fla. 1986); Brown v. State, 509 So.2d 1342 (Fla. 1st DCA 1987); and Foister v. State, 510 So.2d 371 (Fla. 1st DCA 1987).
Under the facts herein, we disagree that the above cases are controlling. In the present case, unlike the foregoing cases, the trial court relied on a single departure reason which was valid under case law from this court when appellant was sentenced but was later invalidated by the Florida Supreme Court. See Scott v. State, 492 So.2d 448 (Fla. 1st DCA 1986), rev'd., 508 So.2d 335 (Fla. 1987). Under such circumstances, on remand, a trial court may depart from the recommended guidelines sentence if a clear and convincing reason is given. Johnson v. State, 503 So.2d 959 (Fla. 1st DCA 1987); Morganti v. State, 510 So.2d 1182 (Fla. 4th DCA 1987) and the cases cited therein. Accordingly, appellant's motion for rehearing is denied.
In view of the importance of the issue addressed in this opinion and the likelihood that it will continue to recur, we certify to the Supreme Court of Florida the same question as did the Fourth District in Morganti v. State, supra.
REVERSED and REMANDED, and the case is remanded for resentencing.
ERVIN and BOOTH, JJ., concur.