Alvarez v. State

525 So. 2d 946, 13 Fla. L. Weekly 1106, 1988 Fla. App. LEXIS 4237, 1988 WL 45253

Opinion

ON MOTION FOR REHEARING

PER CURIAM.

We grant appellant’s motion for rehearing and withdraw our opinion filed October 14,1987. We substitute the following opinion.

This court directed the parties to file supplemental briefs after appellant demonstrated in his motion for rehearing that his appellate counsel was not furnished with a copy of the trial court’s written reasons for departure. We affirm appellant’s conviction; however, we find merit in appellant’s argument that the trial court erred when it departed from the recommended guidelines sentence. The trial court’s sentencing order contains six findings which appear to furnish the basis for departure from the sentencing guidelines. We hold that none of the findings constitutes a valid reason for aggravation of appellant’s sentence. We specifically note that the quantity of drugs involved in a crime is not a valid reason for departure. Atwaters v. State, 519 So.2d 611 (Fla.1988).¹

Accordingly, we reverse and remand for entry of a fifteen year sentence, the minimum mandatory sentence required by section 893.135(l)(b)(3) Florida Statutes (1985).

REVERSED and REMANDED.

ANSTEAD, LETTS and DELL, JJ., concur.

1 . Atwaters has effectively overruled this court's decision in Pastor v. State, 498 So.2d 962 (Fla. 4th DCA 1986), wherein we approved a guidelines departure based on the quantity of drugs involved.