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516 So. 2d 109

516 So.2d 109

12 Fla.L.Weekly 2766

Hudacek v. State

District Court of Appeal of Florida

Decided December 9, 1987

District Court of Appeal of Florida · decided 1987-12-09

Relies on 476 So. 2d 158 - Albritton v. State

Decided 1987-12-09

PER CURIAM.

¶1We affirm appellant’s conviction, but remand for resentencing. The first reason given by the trial court for departure from the guidelines — that appellant was engaged in interstate as opposed to intrastate drug trafficking — does not constitute a clear and convincing reason for departure. While the second reason given by the trial court has been found to be a valid reason for departure, we are unable to say beyond a reasonable doubt that the trial court would have departed as it did, had it known the first reason it relied upon was invalid. Therefore, we reverse for re-sentencing. See Albritton v. State, 476 So.2d 158 (Fla.1985).

¶2REVERSED for resentencing.

DELL and STONE, JJ., concur.WALDEN, J., concurs in part and dissents in part with opinion.
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