Bergling v. State

571 So. 2d 12, 1990 Fla. App. LEXIS 4317, 1990 WL 80804

Opinion

SCHOONOVER, Acting Chief Judge.

The appellant, Ted James Bergling, challenges the judgments and sentences entered pursuant to jury verdicts finding him guilty of conspiracy to traffic in twenty-eight grams of cocaine, sale of twenty-eight grams of cocaine, possession of marijuana, and possession of drug paraphernalia.

We find no merit in any of the appellant’s contentions concerning the convictions and, accordingly, affirm them. We also find no merit in the appellant’s contention that the court erred in imposing a mandatory minimum sentence in conjunction with the guidelines sentence he received. Ent v. State, 558 So.2d 101 (Fla.2d DCA 1990); McNair v. State, 540 So.2d 896 (Fla.1st DCA 1989).

We agree, however, with the appellant’s contention that the court improperly departed from the guidelines when sentencing him. All of the reasons given by the trial court to support an upward departure from the guidelines were either invalid, or not supported by the record. Nodal v. State, 524 So.2d 476 (Fla.2d DCA 1988); Lewis v. State, 558 So.2d 170 (Fla. 5th DCA 1990). See also State v. Simpson, 554 So.2d 506 (Fla.1989).

We, therefore, affirm the convictions, but reverse the sentences and remand for resentencing within the guidelines. Shull v. Dugger, 515 So.2d 748 (Fla.1987).

Affirmed in part, reversed in part, and remanded.

LEHAN and PATTERSON, JJ., concur.