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Bates v. State

District Court of Appeal of Florida, Second District
May 15, 1991
579 So. 2d 849 (Fla. Dist. Ct. App. 1991)

Opinion

No. 88-03259.

May 15, 1991.

Appeal from the Circuit Court, Hillsborough County, Edward H. Ward, J.

Marcia Cuesta Locke of Stiles, Allen Taylor, P.A., Tampa, for appellant.

Robert A. Butterworth, Atty. Gen., and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.


Appellant, Anthony Yale Bates, appeals his judgment and sentence for robbery with a firearm and burglary with a firearm. We affirm his convictions and reverse his sentence and remand for imposition of a sentence within the guidelines.

Appellant first argues as error the failure of the trial court to give his requested instruction on aggravated assault as a lesser included offense of the charged offense of robbery with a firearm. Aggravated assault is a category two lesser included offense. The trial judge gave an instruction on simple robbery, a category one lesser offense, one step removed from the offense for which appellant was found guilty. Any error in refusing to give the requested instruction on aggravated assault was harmless. Flint v. State, 463 So.2d 554 (Fla. 2d DCA 1985).

Appellant also argues that the trial judge cited an improper reason for departing from the recommended guidelines sentence. We find the departure improper for the reason that the trial judge failed to enter a written order of departure. Pope v. State, 561 So.2d 554 (Fla. 1990).

We affirm appellant's convictions and reverse his sentence and remand for sentencing within the guidelines.

RYDER, A.C.J., and CAMPBELL and PATTERSON, JJ., concur.


Summaries of

Bates v. State

District Court of Appeal of Florida, Second District
May 15, 1991
579 So. 2d 849 (Fla. Dist. Ct. App. 1991)
Case details for

Bates v. State

Case Details

Full title:ANTHONY YALE BATES, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Second District

Date published: May 15, 1991

Citations

579 So. 2d 849 (Fla. Dist. Ct. App. 1991)

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