Opinion
No. 86-951.
December 30, 1986.
Appeal from the Circuit Court for Hillsborough County, John P. Griffin, J.
Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellant.
James Marion Moorman, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Tampa, for appellee.
The state appeals the trial court's reasons for departing downward as not being "clear and convincing" as required by Florida Rule of Criminal Procedure 3.701(d)(11). We agree.
Appellee was tried by jury on an information charging six counts. The jury found him not guilty of four of the counts and guilty of lesser included offenses of the remaining two counts. Appellee's scoresheet resulted in a presumptive sentence range of seventeen to twenty-two years. The court sentenced appellee to three years for a previous armed burglary conviction presently before the court for sentencing, concurrent three years for the attempted manslaughter conviction in the instant case, and a concurrent one-year sentence for the instant battery conviction. The court's order provided the following:
The clear and convincing reasons this Court feels that require it to depart from the guidelines is [sic] the decisions rendered by the jury and the testimony that this Court itself heard, including the testimony from the witnesses at the time of trial.
Quite the contrary from being "clear and convincing," we feel that these reasons are no reasons at all. The testimony heard by the jury was taken into consideration when the jury rendered its verdict, the verdict that was reflected in appellee's scoresheet as points for the instant convictions. We can discern no other mitigating circumstances from this order. We therefore reverse the sentence imposed and remand for resentencing in accord with the mandates of the guidelines.
DANAHY, C.J., and SCHOONOVER and SANDERLIN, JJ., concur.