Opinion
No. 84-1372.
May 9, 1985.
Appeal from the Circuit Court, Seminole County, Dominick J. Salfi, J.
James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Ellen D. Phillips, Asst. Atty. Gen., Daytona Beach, for appellee.
The trial court departed from the recommended guidelines sentence of "any nonstate prison sanction" and sentenced appellant to 30 months incarceration after he pleaded guilty to one count each of forgery and grand theft. Defendant had wrongfully used a department store credit card which did not belong to him, after two cards had mistakenly been placed in his post office box. He appeals, and we vacate the sentence.
We do not find the "clear and convincing reasons" required by Rule 3.701(d)11, Florida Rules of Criminal Procedure for departure from the recommended sentence. The observation by the trial court that defendant had lied about his involvement in a similar, but later episode in Volusia County, even if sufficient for departure, is simply not supported by anything in the record. Under those circumstances, it cannot be a clear and convincing reason for departure. See Ryder v. State, 464 So.2d 1324 (Fla. 5th DCA 1985).
REVERSED and REMANDED for resentencing under the guidelines.
COBB, C.J., and FRANK D. UPCHURCH, Jr., J., concur.