Perdieu v. State

513 So. 2d 1333, 12 Fla. L. Weekly 2381, 1987 Fla. App. LEXIS 12255

Opinion

PER CURIAM.

Appellant was convicted of robbery with a weapon and sentenced to twelve years’ imprisonment, a departure from the seven to nine years recommended guideline sentence.

Of appellant’s three appellate points, only one requires discussion, i.e., the asserted error in departing from the guidelines. Four grounds were set forth justifying the departure. However, only one of them is a valid ground, i.e., during the commission of the offense appellant used force in excess of that required by holding the knife at Erenstoft’s [the victim] throat, jabbing, and ultimately cutting the victim’s throat as he struggled to protect himself. The court relied upon Sabb v. State, 479 So.2d 845 (Fla. 1st DCA 1985), and Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984), which adequately support his finding and holding.

Accordingly, we affirm the case in all respects except the sentence and remand that aspect of the case to the trial court pursuant to Albritton v. State, 476 So.2d 158 (Fla.1985).

DOWNEY, DELL and STONE, JJ., concur.