Opinion
No. 88-1137.
February 17, 1989.
Appeal from the Circuit Court, Hillsborough County, John P. Griffin, J.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellant.
James Marion Moorman, Public Defender, and James Paul Hudgins, Jr., Asst. Public Defender, Bartow, for appellee.
The state contends on appeal that the trial court used the wrong scoresheet in sentencing appellee and erred in departing downward from the recommended guideline range. We reverse for computation of appellee's sentence using the correct scoresheet; however, we hold that two of the three reasons given for departure are valid and may be used again, in the trial judge's discretion, to depart downward.
Appellee pled nolo contendere and was adjudicated guilty of racketeering and multiple counts of robbery and kidnapping. In sentencing, the court used a category four scoresheet with a corresponding recommended sentence of 12 to 17 years imprisonment. The state urges that the court was required to use a category nine scoresheet and score racketeering as the primary offense because that scoresheet provides the most severe sanction — life imprisonment.
Based on State v. Davis, 537 So.2d 192 (Fla. 2d DCA 1989), a related case involving the same criminal transactions, we hold that the court erred in using the category four scoresheet.
With respect to the downward departure in sentence, the trial court gave the following reasons: (1) the youthful age of the offender; (2) the lack of any prior significant criminal history; and, (3) the degree of culpability of appellee in light of the codefendants' culpability and the sentences of the codefendants.
We considered the first two reasons for departure in Davis, and once again hold that the youthful age of appellee in this case is a valid reason for departure and that the lack of any prior significant criminal history is not valid. As to the third reason, a lesser sentence afforded to a codefendant, the trial court may, based on the facts of the case, depart downward. Sanders v. State, 510 So.2d 296 (Fla. 1987). In addition to a codefendant's lesser sentence, appellee was the driver of the getaway car and not a direct participant, and one of the detectives remarked that the appellee was a follower and not a leader.
Accordingly, we reverse the sentence and remand for resentencing using a category nine guidelines scoresheet. At resentencing, the judge may again use the two valid reasons previously given for departure.
REVERSED and REMANDED.
DANAHY, A.C.J., and LEHAN, J., concur.