
    Trevor COCHRAN, Appellant, v. STATE of Florida, Appellee.
    No. 87-1891.
    District Court of Appeal of Florida, Second District.
    April 13, 1988.
    On Motion for Rehearing Sept. 23, 1988.
    Second Rehearing Dec. 6, 1988.
    James Marion Moorman, Public Defender, Bartow, and Brad Permar, Asst. Public Defender, Clearwater, for appellant.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and Joseph R. Bryant, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Chief Judge.

The appellant, Trevor Cochran, appeals his departure sentence of life imposed on remand after appeal of his previous departure sentence of life. We affirm.

This case has had an extended procedural history. In January of 1986 the appellant was convicted of burglary with assault in violation of section 810.02(2)(a), Florida Statutes (1985). The judge sentenced him to life imprisonment, departing from the presumptive range of four and one-half to five and one-half years imprisonment. On the guidelines scoresheet the judge provided the following reasons for departure: “The [defendant] is a habitual offender & constitutes a danger to society. Terror of victim; thoughtful planning of crime.” The appellant appealed his conviction and sentence. Before this court issued its opinion in this first appeal, the supreme court of Florida decided Whitehead v. State, 498 So.2d 863 (Fla.1986), holding habitual offender status an invalid reason for departure if based upon prior record. This court affirmed the appellant’s conviction but reversed his sentence based on Whitehead and remanded for resentencing pursuant to Albritton v. State, 476 So.2d 158 (Fla.1985). Cochran v. State, 506 So.2d 49 (Fla. 2d DCA 1987).

At resentencing after remand, the trial judge chose the danger-to-society reason alone and expanded upon it in a lengthy sentencing order explaining her findings and supporting reasons in great detail. She based her finding that the appellant posed a “danger to society in the future” primarily on the following: despite repeated attempts at rehabilitation in the prison system and on probation coupled with continued psychiatric counseling, whenever certain dangerous situations occurred (i.e. several factors coalescing at once — alcohol consumption and stressful life events — explained in several psychiatric reports which the judge appended to her order), the appellant reacted by engaging in criminal behavior. The judge concluded:

From the doctor’s reports [appended to this order], from the apparent failure of counseling in the past, from all indications, there is no way to make certain these “situations” occur [sic] ... no way, hope of rehabilitation, short of keeping the Defendant in custody, to make certain he does not face those situations again in society, and commit additional offenses.
This Court would be derelict in its duty if it failed to view the totality of the Defendant’s mental history. Based upon this history, the Court finds beyond a reasonable doubt that the Defendant constitutes a future and continued danger to society.

The judge was careful to state in her order that her conclusions contained no consideration of the appellant’s prior cases where he was found not guilty by reason of insanity nor of cases in which the appellant had previously pled or was found guilty. In the instant appeal the appellant claims that the trial judge has failed to follow the mandate of this court upon resentencing. We disagree with the appellant’s view and, therefore, affirm.

We find that’the trial judge was faced with the very case which Whitehead anticipated in the following language from that opinion:

Second, the factual finding that a defendant poses a danger to society is equally accommodated by the guidelines and is also applied to all defendants. Some indicia of future danger are, of course, weighed and scored within the guidelines. Victim injury, for example, which may under some circumstances indicate dangerousness, is specifically scored and therefore considered in a guidelines sentence. The same is true regarding a defendant’s use of a weapon and his legal status when committing a crime. Other evidence, however, which establishes beyond a reasonable doubt that the defendant poses a danger to society in the future can clearly be considered justification for a departure from the recommended sentence.

Whitehead, 498 So.2d at 865 (emphasis added). We do not believe that the supreme court’s subsequent language in Keys v. State, 500 So.2d 134 (Fla.1986) — finding “danger to the community” not a clear and convincing reason for departure — is a bar to our disposition since the court specifically limited that finding to the case before it. Keys, 500 So.2d at 136. The trial judge in the instant case also avoided the Keys proscription against mere speculation that the appellant would commit crimes in the future by her careful analysis and accompanying record support. Id.

In summary, since the trial court did articulate fully one of the former departure reasons to provide a clear and convincing reason to depart again on an Albritton remand, she has not violated the rule in Shull v. Dugger, 515 So.2d 748 (Fla.1987), and her order is, therefore, affirmed.

SCHEB and CAMPBELL, JJ., concur.

ON MOTION FOR REHEARING

DANAHY, Judge.

In his motion for rehearing, the appellant cites State v. Jaggers, 526 So.2d 682 (Fla.1988), which was issued subsequent to our opinion in this case. The appellant contends that Jaggers is indistinguishable from his case, thus requiring that we reverse his departure sentence. The state, on the other hand, argues that Jaggers is distinguishable because the trial court in Jaggers ordered a departure sentence based on the combined circumstances of (1) civil commitment to a mental institution for other than a criminal conviction and (2) subsequent conditional release or supervision status from that mental institution during which he committed the present crime. The First District Court of Appeal found these reasons invalid, and the Florida Supreme Court agreed. We agree with the appellant that Jaggers is indistinguishable and, therefore, mandates our reversal.

Like the defendant in Jaggers, the appellant had previously been committed to a mental institution for other than a criminal conviction — an adjudication of not guilty by reason of insanity of several burglary-with-assault charges. The supreme court in Jaggers cited with approval Coleman v. State, 515 So.2d 313 (Fla. 2d DCA 1987), in which we held that difficult or impossible to treat mental disorders (personality disorders in Coleman) “should not be a reason to subject an individual to ‘an extended term of imprisonment in the state correctional system’ ” and that “alternative forms of confinement and supervision are available.” Jaggers, 526 So.2d at 684. In the instant case, the trial court’s reliance on the psychiatrists’ 1980 reports, which were commissioned to help determine if the appellant was competent to stand trial at that time, contained a poor prognosis now proven correct by subsequent events. Presently to consider those reports is tantamount to considering what Jaggers disapproves, i.e., the appellant’s prior commitment for treatment of a mental disorder, a commitment for other than a criminal conviction. In our original opinion the trial court’s reason for departure seemed to us permissible and in accord with the kind of case anticipated by Whitehead v. State, 498 So.2d 863 (Fla.1986). After Jaggers, however, no doubt remains that the reason chosen by the trial court may not be used to justify departure.

In its response to the appellant’s motion for rehearing the state urged us to find Jaggers distinguishable since the defendant there was on a supervisory status from a mental institution, whereas the appellant’s probation and supervision resulted from a felony conviction. Further reflection convinced us that any such distinction would be one without a difference. Were we to find otherwise, we would be condoning the consideration of prior record as a reason to depart in this case, contrary to Hendrix v. State, 475 So.2d 1218 (Fla.1985). In any event, we need not ponder that argument because the trial court did not base the departure on the probationary status of the appellant, nor the type of probation he was under at the time he committed the offenses which underlay this appeal, but focused only upon the appellant’s psychiatric history as the cause of his crimes and the poor prognosis which the trial court concluded would probably result in future crimes.

It was this psychiatric focus as an invalid departure reason which is at the heart of the supreme court’s opinion in Jaggers. When faced with the defendant’s supervisory status from a Missouri mental institution, the district court in Jaggers was concerned whether its disposition was in conflict with Williams v. State, 504 So.2d 392 (Fla.1987) and thus certified the question. The supreme court found that the prior civil mental commitment in Missouri, whose statutes mandated probationary status after commitment, could not support a departure sentence in the subsequent Florida case. The court clarified its Williams holding that a probationary sentence following a criminal conviction or juvenile disposition could be taken into account to support a departure sentence. This was so, not because the trial court focused on the defendant’s prior record, but because of the defendant’s continuing and persistent criminal activity and the timing of each offense in relation to prior offenses and release from incarceration or supervision. The court held that these aspects of prior criminal history which are not factored into the presumptive sentence may be considered in a departure sentence. Jaggers, 526 So.2d at 684. We further understand Jaggers to hold that consideration of the psychiatric factors which resulted in a commitment for other than a criminal conviction is impermissible. The case before us, while not exactly factually parallel to Jag-gers, still falls within the ambit of the supreme court’s opinion.

Moreover, were we to accept the state’s arguments that a trial court can consider circumstances surrounding a previous conviction which were not taken into consideration at the earlier date (despite the proscriptions of Jaggers), we would be condoning, if nothing else, a violation of the spirit of Hendrix v. State, 475 So.2d 1218 (Fla.1985). We would, furthermore, be sanctioning a departure based on a prior arrest which did not result in a conviction (i.e., the adjudications of not guilty by reason of insanity in 1980). This, of course, we cannot do. Fla.R.Crim.P. 3.701(d)(ll); Dawkins v. State, 487 So.2d 63 (Fla. 2d DCA 1986).

The appellant’s motion for rehearing is granted. We recede from the analysis in our original opinion and reverse and remand for resentencing within the presumptive guidelines range.

CAMPBELL, C.J., and SCHEB, J., concur. 
      
      . The necessary procedures pursuant to section 775.084, Florida Statutes (1985), were followed.
     
      
      . In Keys, the supreme court found that "danger to the community, is not a clear and convincing reason for departure in this case." Id. at 136 (emphasis added).
     
      
      . We distinguish the recent case of Harris v. State, 520 So.2d 688 (Fla. 3d DCA 1988), which held that reasons used to ground an habitual offender finding cannot be used at resentencing on remand to support departure as this is a violation of Shull v. Dugger. The case before us had other separate reasons supporting departure along with the habitual offender reason later found invalid in Whitehead; Harris, on the other hand, had only the one reason, habitual offender, supporting departure.
     