Opinion
No. 85-2542.
September 19, 1986.
Appeal from the Circuit Court, for Pinellas County; Claire K. Luten, Judge.
James Marion Moorman, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and James A. Young, Asst. Atty. Gen., Tampa, for appellee.
Appellant was convicted of three counts of armed robbery, determined to be a habitual felony offender under section 775.084, Florida Statutes (1985), and sentenced to twenty-five years on each robbery count to run concurrently. Appellant had previously been convicted of four third degree felonies and one misdemeanor. The guidelines recommended sentence was seven to nine years. The reason given for the guidelines departure was appellant's habitual offender status. The predicate felony for the determination that he was a habitual felony offender was factored into the guidelines. Thus, appellant contends that his conviction was counted twice contrary to the rule of Hendrix v. State, 475 So.2d 1218 (Fla. 1985).
Based upon this court's holding in Ferguson v. State, 481 So.2d 924 (Fla. 2d DCA 1986), we affirm. Recognizing that other courts have ruled differently on this matter, see e.g., Teague v. State, 491 So.2d 296 (Fla. 5th DCA 1986) and Vicknair v. State, 483 So.2d 896 (Fla. 5th DCA 1986), we adhere to Ferguson and again certify as a matter of great public importance the following question:
IS THE DETERMINATION OF A DEFENDANT AS A HABITUAL FELONY OFFENDER PURSUANT TO SECTION 775.084 A SUFFICIENT REASON FOR DEPARTURE FROM THE RECOMMENDED RANGE OF THE SENTENCING GUIDELINES?
RYDER, A.C.J., and LEHAN, J., concur.