Foister v. State

510 So.2d 371 (1987)

Richard FOISTER, Appellant,
v.
STATE of Florida, Appellee.

No. BM-309.

District Court of Appeal of Florida, First District.

July 29, 1987.

David A. Davis, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and John W. Tiedmann, Asst. Atty. Gen., Tallahassee, for appellee.

FRANK, Associate Judge.

Richard Foister appeals from the departure sentence imposed by the trial court pursuant to his plea of nolo contendere to two counts of lewd and lascivious assault. The presumptive sentence was five years. The trial court, however, departed and sentenced him to ten years incarceration.

Foister correctly asserts and the state concedes that the reasons for departure relied upon by the trial court are inappropriate. See, Powell v. State, 495 So.2d 828 (Fla. 1st DCA 1986). Nonetheless, the state contends the trial court should be allowed upon remand once again to depart. We disagree. When each "reason" stated by the trial court in support of departure is determined to be invalid, resentencing following remand is to occur within the guidelines. Williams v. State, 492 So.2d 1308 (Fla. 1986).

Reversed and remanded for resentencing consistent with this opinion.

ERVIN and WIGGINTON, JJ., concur.