Durrant v. State

OPINION

DOWNEY, Judge.

This is a timely appeal from a judgment of conviction and sentence of five years in prison to be followed by ten years on probation, and a $50,000 fine, for trafficking in between 2,000-10,000 pounds of cannabis, in violation of sections 893.135(l)(a)(2), 893.-03(1)(3) and 893.13(l)(a)(2), Florida Statutes (1983). Appellant was sentenced under the sentencing guidelines pursuant to section 921.001(4)(a), Florida Statutes (1983), although thé crime was committed April 1, 1983. Appellant contests the use of these guidelines.

The sentencing guidelines had not become effective at the time of the commission of the crime involved herein. Thus, in order for the court to sentence appellant under the guidelines, appellant must have made an affirmative selection to be so sentenced. Section 921.001(4)(a) Fla.Stat. (1983). Although there are several instances where the guidelines are referred to, the record falls woefully short of demonstrating a clear and unequivocal choice. Kimsey v. State, 467 So.2d 333 (Fla. 2d DCA 1985).

Accordingly, we reverse the sentence appealed from and remand the cause to the trial court with directions to resentence appellant according to law.

REVERSED AND REMANDED WITH DIRECTIONS.

ANSTEAD and DELL, JJ., concur.