BENJAMIN LEVI JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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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 RE MANDED for further sentencing proceedings.
SMITH, JOANOS and BARFIELD, JJ., concur.
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Morganti v. State, 510 So. 2d 1182 (Fla. 4th DCA 1987)…same result we reach. Brooks v. State, 509 So. 2d 364 (Fla. 1st DCA 1987); Slay v. State, 508 So. 2d 1268 (Fla. 1st DCA 1987); Allen v. State, 506 So. 2d 1149 (Fla. 1st DCA 1987); Avery v. State, 505 So. 2d 596 (Fla. 1st DCA 1987); Johnson v. State, 503 So. 2d 959 (Fla. 1st DCA 1987). The Second District appears also to have reached the same result. Smith v. State, 503 So. 2d 457 (Fla. 2d DCA 1987); Brewer v. State, 502 So. 2d 1367 (Fla. 2d DCA 1987); Donahue v. State, 502 So. 2d 57 (Fla. 2d DCA 1987); Beahn…
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Brumley v. State, 512 So. 2d 220 (Fla. 1st DCA 1987)…cott v. State, 492 So. 2d 448 (Fla. 1st DCA 1986), rev’d., 508 So. 2d 335 (Fla.1987). Under such circumstances, on remand, a trial court may depart from the recommended guidelines sentence if a clear and convincing reason is given. Johnson v. State, 503 So. 2d 959 (Fla. 1st DCA 1987); Morganti v. State, 510 So. 2d 1182 (Fla. 4th DCA 1987) and the cases cited therein. Accordingly, appellant’s motion for rehearing is denied. In view of the importance of the issue addressed in this opinion and the likelihood t…
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Authorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Holmes v. State, 502 So. 2d 1302 (Fla. 1st DCA 1987)