Hudacek v. State

District Court of Appeal of Florida

Hudacek v. State

516 So. 2d 109, 12 Fla. L. Weekly 2766, 1987 Fla. App. LEXIS 11467, 1987 WL 2286

CourtDistrict Court of Appeal of Florida

DecidedDecember 9, 1987

DocketNo. 85-2873

StatusPublished

This text of 516 So. 2d 109 (Hudacek v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hudacek v. State, 516 So. 2d 109, 12 Fla. L. Weekly 2766, 1987 Fla. App. LEXIS 11467, 1987 WL 2286 (Fla. Ct. App. 1987).

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PER CURIAM.

We affirm appellant’s conviction, but remand for resentencing. The first reason given by the trial court for departure from the guidelines — that appellant was engaged in interstate as opposed to intrastate drug trafficking — does not constitute a clear and convincing reason for departure. While the second reason given by the trial court has been found to be a valid reason for departure, we are unable to say beyond a reasonable doubt that the trial court would have departed as it did, had it known the first reason it relied upon was invalid. Therefore, we reverse for re-sentencing. See Albritton v. State, 476 So.2d 158 (Fla.1985).

REVERSED for resentencing.

DELL and STONE, JJ., concur. WALDEN, J., concurs in part and dissents in part with opinion.

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PER CURIAM.

We affirm appellant’s conviction, but remand for resentencing. The first reason given by the trial court for departure from the guidelines — that appellant was engaged in interstate as opposed to intrastate drug trafficking — does not constitute a clear and convincing reason for departure. While the second reason given by the trial court has been found to be a valid reason for departure, we are unable to say beyond a reasonable doubt that the trial court would have departed as it did, had it known the first reason it relied upon was invalid. Therefore, we reverse for re-sentencing. See Albritton v. State, 476 So.2d 158 (Fla.1985).

REVERSED for resentencing.

DELL and STONE, JJ., concur. WALDEN, J., concurs in part and dissents in part with opinion.

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516 So. 2d 109, 12 Fla. L. Weekly 2766, 1987 Fla. App. LEXIS 11467, 1987 WL 2286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hudacek-v-state-fladistctapp-1987.

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