RICKY J. PAYNE, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
PER CURIAM.
This is a petition to review Payne v. State, 480 So. 2d 202 (Fla. 1st DCA 1985), in which the district court held that the trial court did not err in considering Payne’s habitual offender status as a reason for departure from sentencing guidelines. We find conflict with Whitehead v. State, 498 So. 2d 863 (Fla.1986).* While .we approve Payne’s conviction, we remand to the district court with directions to return this cause to the trial court for resentencing consistent with Whitehead.
It is so ordered.
McDonald, C.J., and ADKINS, BOYD, EHRLICH, SHAW and BARKETT, JJ., concur. OVERTON, J., dissents with an opinion.
*
We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.
OVERTON, Justice,
dissenting.
I dissent for the reasons expressed in my dissent in Whitehead v. State, 498 So. 2d 863 (Fla.1986).
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Hall v. State, 511 So. 2d 1038 (Fla. 1st DCA 1987)…Fla. 1st DCA 1986). We also approved Hall’s habitual-offender status as a valid reason for departure, citing Shull v. State, 481 So. 2d 1294 (Fla. 1st DCA 1986); Payne v. State, 480 So. 2d 202 (Fla. 1st DCA 1985) (on motion for rehearing), reversed, 498 So. 2d 413 (Fla.1986); and Whitehead v. State, 467 So. 2d 779 (Fla. 1st DCA 1985), reversed, 498 So. 2d 863 (Fla.1986), but reversed and remanded for resentencing because the trial court had not reduced the reasons for departure to writing, citing Shull and Cu…
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Everage v. State, 516 So. 2d 81 (Fla. 1st DCA 1987)…jurisdiction for one third of the 21 year sentence. On appeal this court affirmed the conviction but reversed and remanded for resentencing because of the error in retaining jurisdiction. Payne v. State, 480 So. 2d 202 (Fla. 1st DCA 1985), modified, 498 So. 2d 413 (Fla.1987) {Payne I). Payne then filed a petition for review in the Florida Supreme Court and, while this petition was pending, the trial court proceeded with the resentencing mandated by this court in Payne I. Payne thereafter appealed the resenten…
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Vicknair v. State, 501 So. 2d 755 (Fla. 5th DCA 1987)…2d 416 (Fla.1986).2 The state urges that Vicknair’s sentence is a nullity because the resentencing took place during the time the state was seeking discretionary review in the supreme court. Payne v. State, 493 So. 2d 1104 (Fla. 1st DCA), approved, 498 So. 2d 413 (Fla.1986), holds that after discretionary review in the supreme court is sought, the trial court (as well as the district court of appeal) loses jurisdiction and cannot re-sentence pending final disposition by the reviewing court where it is procee…
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- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Payne v. State, 480 So. 2d 202 (Fla. 1st DCA 1985)