BARRY PAUL GILMORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The denial of a motion to correct sentence is affirmed because the Whitehead decision, which held the habitual offender statute is not an exemption to sentencing guidelines, is not applied retroactively.
Barry Paul Gilmore appealed the denial of his motion to correct sentence, arguing his sentence was illegal because the judge departed from recommended…
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PER CURIAM.
Barry Paul Gilmore appeals the denial of his motion to correct sentence. Gilmore contends he was sentenced illegally because the trial judge departed from the recommended guideline sentence for the sole reason that Gilmore was an habitual offender. Gilmore did not appeal his departure sentence. Subsequently, our supreme court decided Whitehead v. State, 498 So. 2d 863 (Fla.1986), which held that the habitual offender statute is not an exemption to the sentencing guidelines and does not furnish a basis for exceeding the recommended guideline sentence.
In his motion to correct sentence, Gilmore sought to retroactively claim the benefit of Whitehead. We have previously held that Whitehead should not be applied retroactively. Rowe v. State, 523 So. 2d 620 (Fla. 2d DCA 1988); Cusic v. State, 512 So. 2d 309 (Fla. 2d DCA 1987); McCuiston v. State, 507 So. 2d 1185 (Fla. 2d DCA 1987).
We affirm and again certify conflict with Hall v. State, 511 So. 2d 1038 (Fla. 1st DCA 1987).
RYDER, A.C.J., and CAMPBELL and LEHAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gilmore v. State, 534 So. 2d 1149 (Fla. 1988)…GRIMES, Justice. Pursuant to article V, section 3(b)(4), Florida Constitution, we review Gilmore v. State, 528 So. 2d 416 (Fla. 2d DCA 1988), because of certified conflict with Hall v. State, 511 So. 2d 1038 (Fla. 1st DCA 1987). On November 17, 1988, this Court quashed the opinion of the First District Court of Appeal in Hall. On the same date, we issued an opinion in…
Authorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Hall v. State, 511 So. 2d 1038 (Fla. 1st DCA 1987)
- McCUISTON v. State, 507 So. 2d 1185 (Fla. 2d DCA 1987)
- Rowe v. State, 523 So. 2d 620 (Fla. 2d DCA 1988)
- Cravey v. State, 512 So. 2d 309 (Fla. 2d DCA 1987)