Matire v. State

Sep 16, 1987
No. 4-86-1361
Versions:520 So. 2d 292
12 Fla. L. Weekly 2240
1987 WL 659
1987 Fla. App. LEXIS 10245

Lead Opinion

PER CURIAM.

We affirm the conviction. However, the state admits that in light of the holding in Whitehead v. State, 498 So.2d 863 (Fla.1986), decided subsequent to the sentencing proceedings below, a habitual offender status is not an adequate reason to depart from the sentencing guidelines. Therefore, the trial judge erred in departing from the guidelines on the basis of finding the defendant a habitual offender. Accordingly, we remand for sentencing within the guidelines range.

GLICKSTEIN and GUNTHER, JJ., and LUZZO, JOHN T., Associate Judge, concur.



Rehearing

UPON MOTION FOR REHEARING

PER CURIAM.

Appellant’s motion for rehearing is granted in part, and we delete from the last sentence of the first paragraph in the September 16, 1987, opinion in this case the closing clause, “unless the trial court states valid reasons for departure,” as well as the subsequent two paragraphs.

This modification takes cognizance of the recent holding of the Florida Supreme Court that when the trial court’s only stated reason for departure from the guidelines sentencing range is invalid, resentenc-ing must be within the presumptive guidelines range. Shull v. Dugger, 515 So.2d 748, 750 (Fla.1987). Therefore, on remand, the trial court may not utilize new reasons to justify a departure from the recommended guidelines sentence.

GLICKSTEIN and GUNTHER, JJ., and LUZZO, JOHN T., Associate Judge, concur.