Opinion
No. 84-326.
December 3, 1986.
Appeal from the Circuit Court, Broward County, LeRoy H. Moe, J.
Richard L. Jorandby, Public Defender, and Richard B. Greene, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for appellee.
ON MOTION FOR REHEARING
In moving for rehearing of our October 1, 1986, per curiam opinion, 493 So.2d 1032, the state contends that the trial court stated two clear and convincing reasons that justify departure from the guidelines sentence in this case: the proximity in time of the appellant's subject misconduct to the time of his release from imprisonment for a similar offense; and a pattern of escalating crimes. The state cites numerous case authorities in which these reasons have been found to justify sentence departures.
Had the trial court stated the reasons as the state has, they would constitute clear and convincing reasons for departure from the guidelines sentence. However, much as in Mackey v. State, 495 So.2d 916 (Fla. 4th DCA 1986), we perceive the trial court's purported written statement of departure reasons as merely a recitation of the circumstances forming the bases for departure, rather than sufficiently stated clear and convincing reasons. It is possible, however, to infer from the statement that the trial court had suitable reasons, which it failed adequately to articulate in the writing.
Accordingly, we vacate our opinion of October 1, 1986. We find the reasons for departure as stated to be insufficiently explicit, and remand for sentencing — either within the guidelines, or outside the guidelines provided the trial court furnishes a contemporaneous writing stating clear and convincing reasons for the departure.
GUNTHER, J., concurs.
ANSTEAD, J., dissents without opinion.