DARCUS L. WRIGHT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the aggravated battery conviction but reversed the firearm possession conviction and remanded for resentencing due to invalid reasons for departure.
The appellant was convicted of aggravated battery with a firearm and possession of a firearm during a felony. The trial court imposed a departure sent…
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PER CURIAM.
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 re-sentencing. 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.
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Smith v. State, 548 So. 2d 755 (Fla. 5th DCA 1989)…, 526 So. 2d 743 (Fla. 3d DCA 1988). FOURTH DISTRICT COURT OF APPEAL: Higgins v. State, 545 So. 2d 973 (Fla. 4th DCA 1989); Williams v. State, 546 So. 2d 1120 (Fla. 4th DCA 1989); Gunn v. State, 546 So. 2d 115 (Fla. 4th DCA 1989); Wright v. State, 546 So. 2d 96 (Fla. 4th DCA 1989); Mitchell v. State, 543 So. 2d 292 (Fla. 4th DCA 1989); Peterson v. State, 542 So. 2d 417 (Fla. 4th DCA 1989); Cherry v. State, 540 So. 2d 146 (Fla. 4th DCA 1989); Prescott v. State, 529 So. 2d 302 (Fla. 4th DCA 1988); Sapp v. St…
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Gordon v. State, 579 So. 2d 368 (Fla. 4th DCA 1991)…d convincing reason for departure which must be proved beyond a reasonable doubt. Scurry v. State, 489 So. 2d 25, 29 (Fla.1986). Some of the cases involving this reason have involved the use of a firearm with bystanders at risk. See Wright v. State, 546 So. 2d 96 (Fla. 4th DCA 1989); Burgess v. State, 524 So. 2d 1132 (Fla. 1st DCA 1988); Previlon v. State, 500 So. 2d 716 (Fla. 4th DCA 1987). There are other cases involving arson, Rey v. State, 509 So. 2d 1332 (Fla. 3d DCA 1987), and threatened use of dynamit…
Authorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Hall v. State, 517 So. 2d 678 (Fla. 1988)
- F.Y. Scutti v. Daniel E. Adache & Assocs. Architects, P.A., 480 So. 2d 718 (Fla. 4th DCA 1986)
- Roges Previlon v. State, 500 So. 2d 716 (Fla. 4th DCA 1987)
- Cherry v. State, 540 So. 2d 146 (Fla. 4th DCA 1989)