
    Kenneth Ray BURTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D99-3075.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 2000.
    Robin C. Lemonidis of Pierce & Lemoni-dis, P.A., Melbourne, for Appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Brown v. State, No. SC95844, — So.2d —, 2000 WL 1472598 (Fla. October 5, 2000).

PLEUS, J., and ORFINGER, M., Senior Judge, concur.

GRIFFIN, J., concurs in part and dissents in part, with opinion.

GRIFFIN, J.,

concurring in part; dissenting in part.

I respectfully dissent as to the departure sentence. The first ground, that the attempted murder was “committed in the presence of children related to the defendant,” has no legal basis. The only case cited by the court was Champion v. Gray, 478 So.2d 17 (Fla.1985), a civil case dealing with psychic injury to someone related to a person injured through negligence of a civil defendant. Further, the evidence that this occurred is scant and the evidence that any child was affected was incompetent. The second ground is that the attack took place in the presence of members of the victim’s family. This is a statutory ground, but it has no factual support.  