Gotay v. State

549 So. 2d 1034, 14 Fla. L. Weekly 1666, 1989 Fla. App. LEXIS 1319, 1989 WL 77475

Opinion

ON MOTION FOR REHEARING

PER CURIAM.

We grant appellant’s motion for rehearing. We withdraw the opinion issued March 15, 1989 and substitute the following opinion:

We affirm appellant’s conviction of aggravated battery and trespass. We reverse appellant’s sentence.

The record does not support the trial court’s departure based upon an escalating pattern of criminal behavior. See Gales v. State, 515 So.2d 431 (Fla. 4th DCA 1987); Davis v. State, 534 So.2d 821 (Fla. 4th DCA 1988). We also find no support in the record for the trial court’s departure based upon appellant’s juvenile record and severe and continuing emotional trauma of the victims.

The state concedes that the trial court did not comply with section 39.111(7), Florida Statutes (Supp.1986) when it sentenced appellant as an adult. Accordingly, we reverse the sentence imposed and remand this cause to the trial court for compliance with section 39.111(7), and for resentenc-ing.

REVERSED and REMANDED.

LETTS, DELL and GUNTHER, JJ., concur.