Gaynor v. State

522 So. 2d 1047, 13 Fla. L. Weekly 911, 1988 Fla. App. LEXIS 1380, 1988 WL 30234

Opinion

RYDER, Acting Chief Judge.

This case was previously before this court. Gaynor v. State, 505 So.2d 467 (Fla. 2d DCA 1987). We expressly held “Entry into an occupied dwelling is an essential element of [the crime charged]” and cannot be used as a reason to justify departure from the guidelines sentence. Id. at 469.

It is clear from the transcript that the trial court expressly refused to follow this court’s mandate in Gaynor. We reverse appellant’s sentence and remand with an order that the learned trial judge below resentence appellant within the guidelines.

The arguments on appeal concerning other possible reasons for departure will not be addressed by this panel based upon the Supreme Court of Florida’s holding in Shull v. Dugger, 515 So.2d 748 (Fla.1987), which was handed down subsequent to our first opinion in this case.

CAMPBELL and THREADGILL, JJ., concur.