Matthews v. State

502 So. 2d 63, 12 Fla. L. Weekly 469, 1987 Fla. App. LEXIS 6647

Opinion

WENTWORTH, Judge.

Appellant seeks review of a judgment of conviction and sentence for leaving the scene of an accident involving personal injury. We affirm the judgment of conviction, but we find that in imposing sentence the court predicated a departure from the Fla.R.Crim.P. 3.701 sentencing guidelines upon impermissible considerations.

In its written reasons for departing from the recommended guidelines sentence the court indicated that appellant is an habitual offender, and that the recommended sentence does not provide adequate retribution, rehabilitation, or deterrence. Classification as an habitual offender will not support a departure from the guidelines recommendation. See Whitehead v. State, 498 So.2d 863 (Fla.1986). The court’s conclusory statement as to retribution, rehabilitation, and deterrence merely indicates a personal disagreement with the recommended sentence and thus also will not support a departure from the guidelines recommendation. Cf, Scurry v. State, 489 So.2d 25 (Fla.1986). Although the court did specify other reasons for departure, it is not clear that the same sentence would have been imposed without consideration of these impermissible factors.

The judgment of conviction is affirmed. The sentence imposed is vacated, and the cause remanded for resentencing.

WIGGINTON and NIMMONS, JJ., concur.