Per Curiam
Diaz appealed from an order determining he was a level III risk under the Sex Offender Registration Act (SORA). The divided panel ordered a modification of the determination, determining Diaz was a level II risk under SORA. While the risk assessment instrument (RAI) assessed Diaz as level II risk, the Board of Examiners of Sex Offenders recommended an upward departure based on his pattern of sexual offenses, and his diagnosis of schizophrenia. The court concluded the upward departure was warranted, but the panel ruled such was an error. The panel stated the court erred by basing its upward departure on factors already considered by the RAI. It also stated the court erred in relying on Diaz’s alleged mental illness to justify the upward departure stating the record contained no admissible evidence Diaz suffered from a mental illness. Yet, the dissent argued to affirm the decision to keep Diaz as a level III risk stating the sexual offenses Diaz committed involved use of aggression against his victims. Further, the dissent noted the board’s recommendation of an upward departure based on Diaz’s schizophrenia diagnosis and his history of marijuana abuse, finding prosecutors met their burden of showing an aggravating factor not accounted for in the RAI existed.
