Opinion
No. 87-2810.
July 7, 1989.
Appeal from the Circuit Court, Broward County, Leroy H. Moe, J.
Richard L. Jorandby, Public Defender, and Marcy K. Allen, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and James J. Carney, Asst. Atty. Gen., West Palm Beach, for appellee.
Darcus Leo Wright appeals his conviction on several felony counts, the departure sentence imposed, and the costs assessed against him. We affirm the convictions, with one exception, finding no error in the denial of appellant's motion to suppress his incriminating statements.
Appellant was convicted of both "Aggravated Battery With a Firearm, to wit, a handgun" and "Possession of a Firearm, to wit, a handgun, during the commission of a Felony." We reverse the latter conviction on the authority of Hall v. State, 517 So.2d 678 (Fla. 1988), Carawan v. State, 515 So.2d 161 (Fla. 1987), and Cherry v. State, 540 So.2d 146 (Fla. 4th DCA 1989).
Of the several reasons given for the imposition of a departure sentence we find only one valid. The trial court ascribed as a reason for departure the risk of harm to passersby and flagrant disregard for the safety of others. We find support in the record for this reason and we find the reason valid on the authority of Previlon v. State, 500 So.2d 716 (Fla. 4th DCA 1987), and Hannah v. State, 480 So.2d 718 (Fla. 4th DCA 1986). Because there were both valid and invalid reasons given for the upward departure from the sentencing guidelines, we reverse and remand for resentencing. Albritton v. State, 476 So.2d 158 (Fla. 1985).
The state concedes error in the assessment of costs without notice and hearing, and we quash that assessment.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
HERSEY, C.J., and LETTS and GLICKSTEIN, JJ., concur.