Deer v. State, 479 So. 2d 323

DAUKSCH, Judge.

This case is before us for a review of the departure sentence. In Deer v. State, 476 So.2d 163 (Fla.1985), our supreme court held “that the case must be remanded to the appellate court for a determination of whether the trial judge imposed an excessive departure.”

Based upon the record and briefs before us we find no basis upon which to alter the sentence. However, because the supreme court ruled a reason for the departure to be invalid we deem it just and proper to remand the case to the trial court for the initial determination as to whether to depart and, if so to what extent. In accordance with Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984), the supreme court ruled that a prior record of convictions could not be used as a basis for departure. The sentence is vacated and this cause remanded for resentencing within the sound discretion of the trial court.

SENTENCE VACATED, REMANDED.

COBB, C.J., and COWART, J., concur.

Case Details

Case Name: Deer v. State

Court Name: District Court of Appeal of Florida

Date Published: Dec 19, 1985

Citations: 479 So. 2d 323; 11 Fla. L. Weekly 11; 1985 Fla. App. LEXIS 16947; No. 84-995

Docket Number: No. 84-995

Court Abbreviation: Fla. Dist. Ct. App.