he was initially shot, during which time heroic medical and surgical procedures were performed in an effort to sustain his life.
• The defendant showed no remorse for having committed the offense for which he was sentenced as evidenced by his courtroom demeanor and non-caring attitude throughout the proceedings.
• The defendant committed the offense by using a rifle firearm.
• The defendant, prior to committing the murder had been drinking. The defendant had begun drinking at approximately 8:00 a.m. on the Friday morning of the murder. The defendant has an established pattern of drinking as he did the morning of the murder.
• The defendant has twice before been given periods of probation after convictions. Apparently the defendant learned nothing from these past periods of probation, in that he has not been able to conform his behavior to societal norms and standards.
• A lesser sentence is not commensurate with the seriousness of the defendant’s crime.
• The sentence imposed in this case is necessary to deter others. The portion of Montieello in which the victim was killed is an area with small grocery stores that sell alcoholic beverages. Some of the people who hang around this portion of Montieello frequently drink to excess and cause trouble and problems. Frequently firearms and other deadly weapons are involved in the commission of crimes in this area. The crime was committed in front of one of these groceries where the defendant had been drinking prior to his murdering the victim in front of a number of these people.
• The Parole and Probation Officer who prepared the presentence investigation recommended the defendant be sentenced outside the sentencing guidelines and receive not less than a 25 year commitment to the Department of Corrections.
13.In the court’s opinion the evidence as presented could have easily sustained a conviction of murder in the first degree.
We find the reasons numbered one and two are valid reasons to depart from the guidelines. See Garcia v. State, 454 So.2d 714, 717 (Fla. 1st DCA 1984); Johnson v. State, 462 So.2d 49 (Fla. 1st DCA 1984). Reason number three was properly considered in accordance with rule 3.701(b)(3), as "circumstances surrounding the offense.” Johnson v. State, 462 So.2d at 50.
Reason number four is an impermissible reason for a departure from the guidelines sentence. By convicting Scurry of the lesser included offense of second degree murder, the jury obviously did not feel the crime was committed with the necessary premeditation or calculation to sustain a conviction for first degree murder. Therefore, the trial judge included a factor relating to the instant offense for which a conviction was not obtained, which violates Florida Rule of Criminal Procedure 3.701(d)(ll). The trial judge, in doing so, “improperly usurped the jury’s function when, in fact, the jury rejected the allegations that appellant committed the crime” with the necessary premeditation. Von Carter v. State, 468 So.2d 276, 278 (Fla. 1st DCA 1985). Cf. Burch v. State, 462 So.2d 548 (Fla. 1st DCA 1985); Brooks v. State, 456 So.2d 1305 (Fla. 1st DCA 1984). Under the same rationale, reason number thirteen is an impermissible reason for departure.
Reasons five and seven through twelve, are valid bases upon which the trial judge can depart from a recommended guidelines sentence. In doing so, the trial judge simply took into account the “severity of the convicted offense and the circumstances surrounding the offense,” as contemplated by Rule 3.701(b)(3), in deciding to sentence outside of the guidelines. See Swain v. State, 455 So.2d 533 (Fla. 1st DCA 1984); Mincey v. State, 460 So.2d 396 (Fla. 1st DCA 1984); Deer v. State, 462 So.2d 96 (Fla. 5th DCA 1985) (reason number nine).