RICHARD FOISTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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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.
Cases With Similar Vibessemantic neighbors from the corpus
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Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)…enerally, when all of the reasons stated by the trial court in support of departure are found invalid, resentencing following remand must be within the presumptive guidelines sentence. Williams v. State, 492 So. 2d 1308 (Fla.1986); Foister v. State, 510 So. 2d 371 (Fla. 1st DCA 1987); Royal v. State, 508 So. 2d 1313 (Fla. 2d DCA 1987); Carter v. State; 485 So. 2d 1292 (Fla. 4th DCA), rev. denied, 494 So. 2d 1149 (Fla.1986). Some of our district courts, however, have distinguished the situation where the only…
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Hall v. State, 511 So. 2d 1038 (Fla. 1st DCA 1987)…ra. . The supreme court opinion in Williams v. State, 492 So. 2d 1308 (Fla.1986) indicates that when each reason for departure is found invalid by the appellate court, resentencing on remand must be within the guidelines. See also Foister v. State, 510 So. 2d 371 (Fla. 1st DCA 1987). We view that holding to be inapplicable to this case because the sole reason for departure stated by the trial court had been judicially approved and the state might well be able to present additional evidence of other clear and…
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Bryant v. State, 148 So. 3d 1251 (Fla. 2014)…hat “[generally, when all of the reasons stated by the trial court in support of departure are found invalid, resentencing following remand must be within the presumptive guidelines sentence.” Id. (citing Williams, 492 So. 2d 1308; Foister v. State, 510 So. 2d 371 (Fla. 1st DCA 1987); Royal v. State, 508 So. 2d 1313 (Fla. 2d DCA 1987); Carter v. State, 485 So. 2d 1292 (Fla. 4th DCA), rev. denied, 494 So. 2d 1149 (Fla.1986)). We further observed that some district courts were distinguishing “the situation wher…
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- Williams v. State, 492 So. 2d 1308 (Fla. 1986)
- Powell v. State, 495 So. 2d 828 (Fla. 1st DCA 1986)