JONES v. STATE, 520 So.2d 109 (Fla.App. 5 Dist. 1988)

JOHNNY JAY JONES, APPELLANT, v. STATE OF FLORIDA, APPELLEE.

No. 86-1763.District Court of Appeal of Florida, Fifth District.
February 18, 1988.

Appeal from the Circuit Court, Orange County, Gary L. Formet, Sr., J.

James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Kevin Kitpatrick Carson, Asst. Atty. Gen., Daytona Beach, for appellee.

DAUKSCH, Judge.

This is an appeal from a sentence. The trial court gave as a reason for departure that the murder appellant committed was done to eliminate a witness. This is a

Page 110

valid reason for departure. See Blankenship v. State, 516 So.2d 76
(Fla. 5th DCA 1987). However, we do not have any record to review which substantiates that reason for departure. Thus we must remand for resentencing where either proof is given to substantiate the departure or a guideline sentence imposed Armontrout v. State, 503 So.2d 984 (Fla. 5th DCA 1987).

We uphold the court’s reason for departure regarding the timing of the offenses, Williams v. State, 504 So.2d 392, 393 (Fla. 1987), but are not convinced that the court would have departed for that reason only. Therefore, we remand for resentencing. See Albritton v. State, 476 So.2d 158 (Fla. 1985).

The third reason for departure, the determination that certain previous convictions were not scorable, is invalid. Those convictions were scored. The sentence is vacated and this cause remanded for resentencing.

SENTENCE VACATED; REMANDED.

ORFINGER and COWART, JJ., concur.