Opinion
No. 86-3097.
September 2, 1988.
Appeal from the Circuit Court, Polk County, Oliver L. Green, Jr., J.
James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and James A. Young, Asst. Atty. Gen., Tampa, for appellee.
The defendant, Jimmy Lee Smith, raises two issues on appeal, only one of which we find meritorious. Smith was adjudicated guilty of possession of cocaine and possession of paraphernalia. His recommended guidelines sentence was any nonstate prison sanction. The court, however, sentenced Smith to four years' imprisonment on the cocaine charge and one year imprisonment on the paraphernalia charge, the terms to run concurrently.
The court justified its upward departure sentence by writing that Smith's conduct in the presence of his girlfriend's small children, who were living in the residence where the offenses occurred, constituted a great hazard to bystanding, innocent parties. There was, however, no evidence that Parker's children witnessed Parker and Smith's drug use or that they suffered any emotional trauma, the type of findings necessary to justify such a departure. Davis v. State, 517 So.2d 670 (Fla. 1987). Therefore, we affirm Smith's convictions but reverse the departure sentence and remand for resentencing within the guidelines recommended range.
Affirmed in part, reversed in part and remanded with instructions.
HALL and THREADGILL, JJ., concur.