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509 So. 2d 1326

509 So.2d 1326

12 Fla.L.Weekly 1748

State v. Duffer

District Court of Appeal of Florida · decided 1987-07-17

Cited by 1 later decisions — most recently April 1998

1 state decisions

Relies on 471 So. 2d 38 - The Florida Bar in Re Inglis · 461 So. 2d 1361 - Davis v. State · 473 So. 2d 268 - State v. Wright

Good law ✅— No negative treatment on recordhow we know

Decided 1987-07-17

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PER CURIAM.

¶1The state appeals the sentence imposed on Edgar Davis Duffer for obtaining property in return for a worthless check. Duffer pled nolo contendere, was adjudicated guilty, and sentenced to two years community control, followed by three years probation.

¶2The state alleges that there were two sentencing errors: first, that no sentencing guidelines scoresheet was prepared and second, that the court’s downward departure is not supported by clear and convincing reasons.

¶3On review of the record we conclude that the absence of a scoresheet from the record on appeal is harmless error because one was prepared and presented to the trial judge for his consideration at sentencing. See Percival v. State, 506 So.2d 66 (Fla. 2d DCA 1987); Whistin v. State, 500 So.2d 730 (Fla. 2d DCA 1987); Ford v. State, 474 So.2d 250 (Fla. 2d DCA 1985); Davis v. State, 461 So.2d 1361 (Fla. 2d DCA), review denied, 471 So.2d 43 (Fla.1985).

¶4For the reasons stated below, we agree that the reasons cited by the trial court to support the downward departure are not clear and convincing.

¶5The first reason given by the trial judge is that Duffer offered a reasonable explanation for his failure to pay the amount owed on the worthless check. We construe this reason as an expression of the trial court’s doubt regarding Duffer’s guilt. This is an invalid reason for departure. See State v. Wright, 473 So.2d 268 (Fla. 1st DCA 1985).

¶6The court stated further that Duffer had made restitution. Although the court had not yet ordered restitution, section 775.089, Florida Statutes (1985), provides that the court shall order a defendant to make restitution to the victim. We note that compliance with an anticipa*1328ted court order is not a proper basis to depart. See State v. Taylor, 482 So.2d 578 (Fla. 5th DCA 1986).

¶7The court’s second reason for departure was:

The Defendant has apparently developed a relationship with a lady who appears to have a positive influence on him, they plan to marry, and the court feels that this is the kind of stable relationship necessary to the Defendant.

¶8The fact that Duffer plans to marry is not a clear and convincing reason for departure. See State v. Glasper, 506 So.2d 480 (Fla. 4th DCA 1987). Similarly, a defendant’s “stable environment” is an invalid ground upon which to base a departure. Taylor.

¶9For the foregoing reasons, we vacate the sentence and remand for resentencing within the guidelines. Although we hold that the absence of a scoresheet from the record is harmless error in this case, on remand the trial court is instructed to include a scoresheet in the record.

¶10Vacated and remanded.

CAMPBELL, A.C.J., and SCHOONOVER and THREADGILL, JJ., concur.
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