Opinion
No. 85-2388.
April 18, 1989.
An Appeal from the Circuit Court for Dade County; Theodore R. Mastos, Judge.
Bennett H. Brummer, Public Defender and Arthur B. Calvin, Special Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen. and Michele L. Crawford, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and BARKDULL and FERGUSON, JJ.
The appellant was charged with first degree murder of his wife, attempted first degree murder of his son, and unlawful possession of a firearm while engaged in a criminal offense. The jury returned verdicts of guilty of second degree murder, guilty of attempted manslaughter, guilty of unlawful firearm possession, and aggravated the sentences.
By this appeal the appellant contends that the evidence was insufficient to sustain the verdict of second degree murder and manslaughter. We find no merit in this contention. See Tillman v. State, 471 So.2d 32 (Fla. 1985); Dellinger v. State, 495 So.2d 197 (Fla. 5th DCA 1986).
The appellant also contends that the trial court erred in departing from the guidelines of sentencing without reason. We find this to be error. State v. Jackson, 478 So.2d 1054 (Fla. 1985); Harris v. State, 531 So.2d 1018 (Fla. 2d DCA 1988). We find error in the conviction and sentence for unlawful firearm possession which occurred during the criminal episode involving the verdicts of second degree murder and attempted manslaughter, under the authority of Carawan v. State, 515 So.2d 161 (Fla. 1987), and upon remand, this conviction and sentence should be vacated and set aside. We therefore remand the cause to the trial court for resentencing.
Affirmed in part, reversed in part and remanded with directions.