Musick v. State

578 So. 2d 849, 1991 Fla. App. LEXIS 4122, 1991 WL 68885

• Court: District Court of Appeal of Florida
• Decided: May 1, 1991
• Docket: No. 90-01632
• Status: Published

Opinion

PER CURIAM.

In this appeal from a judgment and sentence for attempted capital sexual battery, Edward Musick argues four issues.¹ We find merit in the issue regarding his sentence which departed upward from the sentencing guidelines.

The trial court’s written reason for departing from the sentencing guidelines reflected that Musick abused his familial authority to facilitate the commission of the crime. If the only ground for departure given by the trial court is that the defendant was in a position of familial authority over the victim, a departure sentence cannot be justified. Cumbie v. State, 574 So.2d 1074 (Fla.1991); Fletcher v. State, 571 So.2d 565 (Fla. 2d DCA 1990). We reverse and remand for sentencing within the guidelines. See Brumley v. State, 520 So.2d 275 (Fla.1988).

Reversed and remanded.

CAMPBELL, A.C.J., and LEHAN and PARKER, JJ., concur.

1 . Musick’s attorney filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and raised two possible issues on appeal. Musick thereafter filed his brief, arguing the two issues submitted by his attorney plus two additional issues submitted by Musick.