No. BH-46 | Fla. Dist. Ct. App. | Nov 3, 1986
Lead Opinion
AFFIRMED.
Rehearing
ON MOTION FOR REHEARING
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" date_filed="1986-10-30" court="Fla." case_name="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" date_filed="1985-08-29" court="Fla." case_name="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.