Summary
In Johnson v. State, 503 So.2d 959 (Fla. 1st DCA 1987), we permitted the trial judge to reconsider departure because the sole reason given for departure was approved by the district court at the time sentence was imposed but later held invalid by the supreme court.
Summary of this case from State v. TrotterOpinion
No. BM-218.
March 5, 1987. Rehearing Denied March 27, 1987.
Appeal from the Circuit Court, Duval County, Bill Parsons, J.
Michael E. Allen, Public Defender, David P. Gauldin, Tallahassee, for appellant.
Jim Smith, Atty. Gen., Royall P. Terry, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
Defendant appeals his final judgment and sentence for battery and shooting into a building. We affirm the conviction but remand for resentencing.
After reviewing the briefs and record on appeal, we find no merit in defendant's arguments as they pertain to his conviction and adjudication of guilt. We do, however, find merit in defendant's contention that the trial court's written reason for departing from the presumptive guidelines sentence (habitual offender status) was not clear and convincing. After the trial court sentenced defendant, the Florida Supreme Court held that habitual offender status was not an adequate departure reason. Whitehead v. State, 498 So.2d 863 (Fla. 1986); Holmes v. State, 502 So.2d 1302 (Fla. 1st DCA 1987). On resentencing, however, the trial court may still exceed the guidelines' sentence, provided there is a clear and convincing reason for the departure.
The judgment is AFFIRMED, but the sentence is REVERSED and the case REMANDED for further sentencing proceedings.
SMITH, JOANOS and BARFIELD, JJ., concur.