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Girard v. State

District Court of Appeal of Florida, Fifth District
Aug 29, 1991
584 So. 2d 235 (Fla. Dist. Ct. App. 1991)

Opinion

No. 89-2261.

August 29, 1991.

Appeal from the Circuit Court for Osceola County, Belvin Perry, Jr., Judge.

James B. Gibson, Public Defender, and George D.E. Burden, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Judy Taylor Rush, Asst. Atty. Gen., Daytona Beach, for appellee.


We affirm appellant's conviction for driving under the influence which caused the death of a human being (DUI manslaughter) in violation of section 316.193, of the Florida Statutes (1987).

However, appellant contends, and the state properly concedes, that the trial court erred in sentencing appellant outside the guidelines without providing contemporaneous written reasons justifying departure. Accordingly, we vacate appellant's sentence and remand for resentencing. Robinson v. State, 520 So.2d 1 (Fla. 1988); Edwards v. State, 570 So.2d 1159 (Fla. 5th DCA 1990). Appellant committed the instant offense prior to July 1, 1988, the effective date of the amendment to Rule 3.988 of the Florida Rules of Criminal Procedure establishing the broader permitted sentencing ranges. Ch. 88-131, § 1, Laws of Fla. The trial court apparently imposed sentence in this case on the mistaken belief that the permitted range was applicable. Because the record does not indicate that the trial court realized that it was imposing a departure sentence, on remand the trial court is permitted to consider whether departure is appropriate and, if so, to set forth valid reasons for departure. State v. Betancourt, 552 So.2d 1107 (Fla. 1989).

Judgment AFFIRMED; sentence REVERSED; and cause REMANDED.

PETERSON, GRIFFIN and DIAMANTIS, JJ., concur.


Summaries of

Girard v. State

District Court of Appeal of Florida, Fifth District
Aug 29, 1991
584 So. 2d 235 (Fla. Dist. Ct. App. 1991)
Case details for

Girard v. State

Case Details

Full title:DANIEL L. GIRARD, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fifth District

Date published: Aug 29, 1991

Citations

584 So. 2d 235 (Fla. Dist. Ct. App. 1991)