Summary
In Foister v. State, 510 So.2d 371 (Fla. 1st DCA 1987), this court found the reasons given for departure to be invalid and ordered the trial court to sentence the defendant within the guidelines.
Summary of this case from Foister v. StateOpinion
No. BM-309.
July 29, 1987.
Appeal from the Circuit Court for Okaloosa County; G. Robert Barron, Judge.
David A. Davis, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and John W. Tiedmann, Asst. Atty. Gen., Tallahassee, for appellee.
Richard Foister appeals from the departure sentence imposed by the trial court pursuant to his plea of nolo contendere to two counts of lewd and lascivious assault. The presumptive sentence was five years. The trial court, however, departed and sentenced him to ten years incarceration.
Foister correctly asserts and the state concedes that the reasons for departure relied upon by the trial court are inappropriate. See, Powell v. State, 495 So.2d 828 (Fla. 1st DCA 1986). Nonetheless, the state contends the trial court should be allowed upon remand once again to depart. We disagree. When each "reason" stated by the trial court in support of departure is determined to be invalid, resentencing following remand is to occur within the guidelines. Williams v. State, 492 So.2d 1308 (Fla. 1986).
Reversed and remanded for resentencing consistent with this opinion.
ERVIN and WIGGINTON, JJ., concur.