Leath v. State

487 So. 2d 384 (1986)

Robert LEATH, Appellant,
v.
STATE of Florida, Appellee.

No. 85-1229.

District Court of Appeal of Florida, Fourth District.

April 23, 1986.

Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Noel A. Pelella, Asst. Atty. Gen., West Palm Beach, for appellee.

DOWNEY, Judge.

From a judgment of conviction of attempted robbery and carrying a concealed weapon and a sentence of twelve years' imprisonment, Leath appeals the sentence only, contending 1) the trial court failed to state in writing clear and convincing reasons for departing from the sentencing guidelines and 2) the court erred in imposing costs upon appellant, who had been adjudicated insolvent.

The state attorney had filed a written motion for aggravation setting forth five grounds therefor, together with citations of authority. The trial judge referred to the grounds set forth in said motion as the reasons for his departure from the guidelines. Some of those grounds constitute valid reasons for departure, such as the appellant's lack of capacity for rehabilitation, Dorado v. State, 482 So. 2d 561 (Fla. 2d DCA Feb. 5, 1986), and others do not, such as lack of remorse (which the state concedes is an invalid reason here), State v. Mischler, 488 So. 2d 523 (Fla. 1986), thus requiring a new sentencing hearing under Albritton v. State, 476 So. 2d 158 (Fla. 1985).

Since it is necessary to reverse and remand this case, if the trial judge concludes he should depart from the sentencing guidelines, we believe he should state his reasons in writing and attach them to the scoresheet as provided in Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985) (en banc), approved by the Supreme Court of Florida in State v. Jackson, 478 So. 2d 1054 (Fla. 1985), and Boynton v. State, 478 So. 2d 351 (Fla. 1985).

Furthermore, the imposition of costs is inappropriate due to appellant's indigency, thus the form provision assessing costs should be eliminated therefrom.

REVERSED AND REMANDED, with directions.

WALDEN and GUNTHER, JJ., concur.