Smith v. State, 85-1092

• Decision Date: 02 May 1986
• Docket Number: No. 85-1092,85-1092
• Citation: 11 Fla. L. Weekly 1041,488 So.2d 593
• Parties: 11 Fla. L. Weekly 1041 Al SMITH, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 593

488 So.2d 593

11 Fla. L. Weekly 1041

Al SMITH, Jr., Appellant, v. STATE of Florida, Appellee.

No. 85-1092.

District Court of Appeal of Florida, Second District.

May 2, 1986.

W. Thomas Wadley of Yanchuck, Thompson, Young, Berman & Latour, P.A., St. Petersburg, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.

SANDERLIN, Judge.

Appellant was convicted by a jury of throwing a deadly missile into an occupied vehicle and simple assault. On appeal, he raises four points, only one of which has merit.

At the sentencing hearing, the trial court found appellant to be a habitual offender and orally set forth the reasons for which finding as required by section 775.084(3)(d), Florida Statutes (1983). See Eutsey v. State, 383 So.2d 219 (Fla.1980). The trial court sentenced appellant to twenty-three years' imprisonment upon conviction for throwing a deadly missile into an occupied vehicle. This sentence represented a departure from the guidelines' recommended sentence of nine to twelve years. No written reasons for departure appear in the record.

Although this court has held that sentencing as a habitual offender is a clear and convincing reason for departing from the guidelines, Ferguson v. State, 481 So.2d 924 (Fla. 2d DCA 1986); McCuiston v. State, 462 So.2d 830 (Fla. 2d DCA 1985), the trial court is nevertheless required to set forth in writing this reason for departure. State v. Jackson, 478 So.2d 1054 (Fla.1985).

Accordingly, appellant's convictions are affirmed, but appellant's sentence for throwing a deadly missile into a occupied vehicle is reversed and the case remanded for resentencing. For guidance, the trial court is directed to Johnson v. State, 486 So.2d 53, 54 n. 1 (Fla. 2d DCA 1986).

RYDER, C.J., and FRANK, J., concur.