512 So. 2d 1158 | Fla. Dist. Ct. App. | 1987
The appellant and a companion were driving on a public road behind a car that was alternately slowing down and speeding up. When the car pulled into a service station, the appellant and his companion followed them there, dragged them out of their car and beat them up, armed with a broken bottle. For his despicable and heinous act, the appellant was charged with two counts of aggravated battery. After trial by jury, the court adjudicated the appellant guilty of one count of aggravated battery and one count of the lesser included offense of battery. The court departed upward from the sentencing guidelines range giving the following reasons:
(1) unprovoked vicious attack on victims of aggravated battery;
(2) prior conviction for battery.
The second reason is clearly a violation of Hendrix v. State, 475 So.2d 1218 (Fla.1985), since the prior conviction has already been factored into the presumptive sentence.
In our disposition of this case we heed the purposes and principles set out in the sentencing guidelines regarding neutrality with respect to race, gender, and social and economic status. Fla.R.Crim.P. 3.701(b)(1). Accordingly, finding neither reason valid, we vacate the appellant’s sentence and remand for resentencing within the presumptive range.
Convictions affirmed; sentence vacated and remanded.