Opinion
No. 87-2336.
March 15, 1989.
Appeal from the Circuit Court, Lee County, R. Wallace Pack, J.
James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Donna A. Provonsha, Asst. Atty. Gen., Tampa, for appellee.
Defendant appeals the revocation of his probation and the departure sentence imposed. We affirm the revocation, reverse the sentence, and remand for resentencing within the guidelines recommended range.
As to the revocation of probation, we conclude there was no error in the trial court's having disallowed an opinion from defendant's psychiatrist as to whether defendant committed the lewd acts which constituted the violations of probation. See Farley v. State, 324 So.2d 662 (Fla. 4th DCA 1975); Gibbs v. State, 193 So.2d 460, 463 (Fla. 2d DCA 1967).
As to the sentence, the trial court gave two reasons for departing from the sentencing guidelines. The first was that the probation violations were acts of the same type as that forming the basis for the crime for which probation had been imposed. However, that reason was not valid because no conviction had been obtained for those acts. See Wilson v. State, 510 So.2d 1088, 1089 (Fla. 2d DCA 1987). The second reason — that the violations of probation were committed in an aggressive and forceful manner — was not supported by the evidence.
The sentence is reversed, and the case is remanded for resentencing within the guidelines recommended range which may include a one-cell increase for violation of probation.
DANAHY, A.C.J., and PARKER, J., concur.