[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

JUDGMENT ENTRYThis cause is an accelerated appeal from appellant's convictions in the Butler County Court of Common Pleas for unauthorized use of computer and attempted misuse of credit card.

The first assignment of error is overruled for reason that the trial court's decision to impose a prison sentence for a fifth degree felony was supported by clear and convincing evidence and is not contrary to law. See State v. Garcia (1998), 126 Ohio App.3d 485, 487; R.C.2929.12(D)(2) and (3); R.C. 2929.13(B)(1)(h), (B)(2)(a); R.C.2929.14(A)(5). See, also, State v. Tranter (Mar. 26, 2001), Clermont App. No. CA2000-05-035, unreported, at 11.

The second assignment of error is sustained for reason that the record does not reflect the findings necessary for the court to have departed from the statutory presumption in favor of imposing the shortest prison term for the offense. See State v. Inghram (2000), 139 Ohio App.3d 577,580; State v. Martin (2000), 140 Ohio App.3d 326, 335-36.

Having affirmed in part and reversed in part the trial court's judgment, appellant's sentence is vacated and the matter is remanded for resentencing consistent with the provisions of this entry.

Pursuant to App.R. 11.1(E), this entry shall not be relied upon as authority and will not be published in any form.

A certified copy of this judgment entry shall constitute the mandate pursuant to App.R. 27.

Costs to be taxed against appellee.

William W. Young, Presiding Judge.

Anthony Valen, Judge and Stephen W. Powell, Judge concur.