District Court of Appeal of Florida, Fifth District.
*307 Thomas C. Greene of Greene, Colegrove, deGroot Chartered, Sanford, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and Pamela D. Cichon, Asst. Atty. Gen., Daytona Beach, for appellee.
GOSHORN, Judge.
Terramikia Whitaker appeals the departure sentence imposed after jury convictions for second degree murder, aggravated battery, use of a firearm in the commission of a felony, carrying a concealed firearm, and discharging a firearm in public.
The trial court gave the following reason for the departure sentence:
This sentence is aggravated by reason of the defendant's total disregard for the safety of other persons and the unreasonable risk towards other persons present at the time of the offense which involved a firearm.
The statutory prohibition against discharging a firearm in public is founded upon a need to protect the public's safety. Therefore, risk of harm to third persons and disregard for the safety of others were already factored into the guidelines scoresheet by virtue of Whitaker's conviction for discharging a firearm in public. Because factors already considered in calculating a guidelines score cannot justify a departure sentence, Hendrix v. State, 475 So. 2d 1218 (Fla. 1985), we affirm the convictions but reverse the departure sentence and remand for resentencing.
AFFIRMED and part, REVERSED in part, and REMANDED for resentencing.
COWART and HARRIS, JJ., concur.
