BALFE v. State

966 So.2d 1018 (2007) Charles Michael BALFE, Appellant, v. STATE of Florida, Appellee. No. 5D06-1652. District Court of Appeal of Florida, Fifth District. October 19, 2007. Jeffrey L. Dees, Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee. *1019 PLEUS, J. We have carefully considered the evidentiary issues raised by the defendant and conclude that the trial court was well within its discretion in admitting the similar fact evidence. See Mendez v. State, 961 So.2d 1088 (Fla. 5th DCA 2007); § 90.404(2)(b), Fla. Stat. Accordingly, we affirm the defendant's convictions for sexual activity with a child. However, as the State acknowledges, the departure sentence imposed is invalid because the departure grounds upon which it was based had not been found by the jury. The sentences are therefore reversed and the cause remanded for resentencing. CONVICTIONS AFFIRMED; SENTENCES REVERSED AND CAUSE REMANDED FOR RESENTENCING. PALMER, C.J. and LAWSON, J., concur.