Central Bell v. State

Nov 3, 1986
No. BH-46
Versions:500 So. 2d 217
11 Fla. L. Weekly 2554
1986 Fla. App. LEXIS 10413

Lead Opinion

PER CURIAM.

AFFIRMED.

ERVIN, WIGGINTON and BARFIELD, JJ., concur.



Rehearing

ON MOTION FOR REHEARING

PER CURIAM.

Appellant seeks rehearing on the Per Curiam Affirmance decision of this Court dated November 3, 1986, singularly contending that by the Florida Supreme Court’s opinion in Whitehead v. State, 498 So.2d 863 (Fla.1986), a departure based on the criteria of the habitual offender statute is improper and in conflict with Hendrix v. State, 475 So.2d 1218 (Fla.1985).

We agree that Whitehead is controlling authority and should be applied for appellant’s benefit, to invalidate the habitual offender finding as the primary reason for the trial judge’s departure from a guidelines sentence. Accordingly, appellant’s motion for rehearing is granted and the cause is remanded for resentencing within the guidelines, unless a valid written reason for departing from the guidelines is set forth.

ERVIN, WIGGINTON and BARFIELD, JJ., concur.