Brown v. State

511 So. 2d 719 (1987)

James Junior BROWN, Appellant,
v.
STATE of Florida, Appellee.

No. BP-153.

District Court of Appeal of Florida, First District.

August 24, 1987.

Phil Patterson, Asst. Public Defender, Tallahassee, for appellant.

Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Brown appeals his convictions and sentences for burglary with assault, sexual battery and aggravated battery. We affirm the convictions but, because the reason given for imposing a departure sentence is invalid, we remand for resentencing.

Brown's argument that his sentencing guidelines scoresheet improperly assessed 85 points for severe victim injury is without merit. However, we agree with his contention that no valid reason was given for imposition of a departure sentence. The trial court's stated reason for departure was the fact that Brown entered the victim's home in the middle of the night while she was sleeping and thus was vulnerable and unable to defend herself. This is not a valid reason for departure. Brown therefore must be resentenced within the guidelines. Williams v. State, 492 So. 2d 1308 (Fla. 1986).

Reversed and remanded for resentencing.

WENTWORTH and THOMPSON, JJ., concur.

BOOTH, J., dissents.

BOOTH, J., dissenting.

I would affirm the sentences imposed and hold valid the reasons given by the trial court for departure.