Perdieu v. State, 87-0043

• Decision Date: 07 October 1987
• Docket Number: No. 87-0043,87-0043
• Citation: 513 So.2d 1333,12 Fla. L. Weekly 2381
• Parties: 12 Fla. L. Weekly 2381 Gary PERDIEU, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1333

513 So.2d 1333

12 Fla. L. Weekly 2381

Gary PERDIEU, Appellant, v. STATE of Florida, Appellee.

No. 87-0043.

District Court of Appeal of Florida, Fourth District.

Oct. 7, 1987.

Rehearing Denied Nov. 12, 1987.

Richard L. Jorandby, Public Defender, and Tanja Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Appellant was convicted of robbery with a weapon and sentenced to twelve years' imprisonment, a departure from the seven to nine years recommended guideline sentence.

Of appellant's three appellate points, only one requires discussion, i.e., the asserted error in departing from the guidelines. Four grounds were set forth justifying the departure. However, only one of them is a valid ground, i.e., during the commission of the offense appellant used force in excess of that required by holding the knife at Erenstoft's [the victim] throat, jabbing, and ultimately cutting the victim's throat as he struggled to protect himself. The court relied upon Sabb v. State, 479 So.2d 845 (Fla. 1st DCA 1985), and Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984), which adequately support his finding and holding.

Accordingly, we affirm the case in all respects except the sentence and remand that aspect of the case to the trial court pursuant to Albritton v. State, 476 So.2d 158 (Fla.1985).

DOWNEY, DELL and STONE, JJ., concur.