State v. MacMillan

671 So. 2d 893, 1996 Fla. App. LEXIS 4050, 1996 WL 185669

Opinion

DAUKSCH, Judge.

This is an appeal from a sentence. Because the judge departed downwards from the sentencing guidelines without giving written reasons we must reverse. State v. Lyles, 576 So.2d 706 (Fla.1991); Ree v. State, 565 So.2d 1329 (Fla.1990). Because there was no evidentiary basis for the departure we also reverse. Because there was no proper guideline scoresheet used by the judge the sentencing proceedings were fatally flawed from the outset. The only fair and proper way to correct the situation is to vacate the purported sentence and remand to the trial court for a proper sentencing hearing where both sides can present what evidence they deem necessary and a correct guideline scoresheet is used. If the sentencing judge again decides to depart then the sentencing document must have on it the written reasons, which should be legally recognized valid ones.

SENTENCE VACATED; REMANDED.

W. SHARP and THOMPSON, JJ., concur.