District Court of Appeal of Florida, First District.
Michael E. Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., Gregory G. Costas, Asst. Atty. Gen., for appellee.
SHIVERS, Judge.
Appellant argues that the trial court erred in using impermissible reasons to depart from the sentencing guidelines. We agree with appellant that one out of the court's five reasons is invalid. We nonetheless affirm the departure on the basis of Albritton v. State, 476 So. 2d 158 (Fla. 1985) and State v. Young, 476 So. 2d 161 (Fla. 1985).
As its second reason for departure from the guidelines, the trial court stated "[appellant's] prior history of criminal behavior ... indicates that rehabilitation is not possible. I find that he has served detentions and prison terms without any rehabilitative results or any attitude adjustment on his part. The protection of society requires restraint." In so stating, the court seems to have been expressing a decision between a recommended sanction involving rehabilitation and a departure sentence involving incarceration or restraint. Since both the recommended sentence and the departure sentence involve restraint[1] and neither involve rehabilitation, we find this reason to be unclear and invalid. See Burch v. State, 462 So. 2d 548 (Fla. 1st DCA 1985) and Brooks v. State, 456 So. 2d 1305 (Fla. 1st DCA 1984).
We find the remaining reasons to be valid. Since it appears that the absence of the one invalid reason would not have affected the departure sentence, we affirm. Albritton v. State, supra, and State v. Young, supra.
BOOTH, C.J., and WIGGINTON, J., concur.
[1] The recommended guidelines sentence in this case is seven-nine years. The trial court imposed a departure sentence of concurrent thirty-year sentences for three counts of armed robbery and concurrent fifteen-year sentences for three counts of unlawful display of a firearm during the commission of a crime.
