Barker v. State

491 So. 2d 1279, 11 Fla. L. Weekly 1672, 1986 Fla. App. LEXIS 9118

Opinion

FRANK, Judge.

It is once again our task to review a sentence imposed outside the guidelines as a result of impermissible reasons for departure being joined with a permissible reason. Although the defendant acknowledges that the trial court could properly consider his juvenile record as a basis for departure, Weems v. State, 469 So.2d 128 (Fla.1985), the other stated reasons relied upon by the trial court are invalid. The defective departure grounds include the fact that the defendant had been convicted of six crimes as an adult, even though he had only reached the age of 21, and the trial court’s determination that his prior sentence had apparently not deterred him from the ongoing commission of crimes. These reasons derive solely from his prior record and are improper. Hendrix v. State, 475 So.2d 1218 (Fla.1985). Because the state has not demonstrated beyond a reasonable doubt that the trial court would have departed even had it not considered the invalid reasons, Albritton v. State, 476 So.2d 158 (Fla.1985), we reverse and remand for re-sentencing.

SCHOONOVER, A.C.J., and LEHAN, J., concur.