Johnson v. State, 503 So. 2d 959

PER CURIAM.

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.

Case Details

Case Name: Johnson v. State

Court Name: District Court of Appeal of Florida

Date Published: Mar 5, 1987

Citations: 503 So. 2d 959; 12 Fla. L. Weekly 713; 1987 Fla. App. LEXIS 12028; No. BM-218

Docket Number: No. BM-218

Court Abbreviation: Fla. Dist. Ct. App.