Bates v. State

579 So. 2d 849, 1991 Fla. App. LEXIS 4579, 1991 WL 80033

Opinion

PER CURIAM.

Appellant, Anthony Yale Bates, appeals his judgment and sentence for robbery with a firearm and burglary with a firearm. We affirm his convictions and reverse his sentence and remand for imposition of a sentence within the guidelines.

Appellant first argues as error the failure of the trial court to give his requested instruction on aggravated assault as a lesser included offense of the charged offense of robbery with a firearm. Aggravated assault is a category two lesser included offense. The trial judge gave an instruction on simple robbery, a category one lesser offense, one step removed from the offense for which appellant was found guilty. Any error in refusing to give the requested instruction on aggravated assault was harmless. Flint v. State, 463 So.2d 554 (Fla. 2d DCA 1985).

Appellant also argues that the trial judge cited an improper reason for departing from the recommended guidelines sentence. We find the departure improper for the reason that the trial judge failed to enter a written order of departure. Pope v. State, 561 So.2d 554 (Fla.1990).

We affirm appellant’s convictions and reverse his sentence and remand for sentencing within the guidelines.

RYDER, A.C.J., and CAMPBELL and PATTERSON, JJ., concur.