REIGH v. STATE (1997)

District Court of Appeal of Florida,Fourth District.

Ernest REIGH, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.

No. 96-0610.

Decided: March 12, 1997

Richard L. Jorandby, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant/cross-appellee. Robert A. Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee/cross-appellant

Appellant was convicted of committing a lewd act and attempted sexual battery on a nine year old child. At his sentencing hearing, appellant admitted committing perjury at his trial, and the court grounded an upward departure sentence on the perjury.

Perjury is not a valid reason for departing from the guidelines. See, e.g., Smith v. State, 484 So.2d 649 (Fla. 4th DCA 1986). This is so even where the fact that the defendant has perjured himself is beyond dispute, and not merely based on the belief of the court after trial. Anderson v. State, 503 So.2d 388 (Fla. 2d DCA 1987); Trainor v. State, 468 So.2d 484 (Fla. 2d DCA 1985). We therefore reverse and remand for a sentence within the guidelines. We have considered the other issues and find them to be without merit.

PER CURIAM.

GUNTHER, C.J., and KLEIN and SHAHOOD, JJ., concur.

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