CHARLES JOHNSON, PETITIONER,
v.
HARRY K. SINGLETARY, JR., AS SECRETARY, DEPARTMENT OF CORRECTIONS, STATE OF FLORIDA, AND THE STATE OF FLORIDA, RESPONDENTS
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PER CURIAM.
The petitioner, Charles Johnson, seeks a writ of habeas corpus based on ineffective assistance of appellate counsel. We grant the petition and remand for resentencing within the guidelines.
In the instant ease, although the petitioner’s trial counsel correctly argued that a departure from the sentencing guidelines cannot be based on prior offenses for which no conviction was obtained, the trial court nonetheless entered a departure sentence. See State v. Tyner, 506 So. 2d 405, 406 (Fla.1987). Because the petitioner’s appellate counsel failed to raise this issue on appeal, we agree with the petitioner that he was denied effective assistance of appellate counsel. Accordingly, we grant the petition and remand for resentencing within the guidelines.
Petition granted; remanded for resentencing.
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Cantres v. State, 708 So. 2d 687 (Fla. 3d DCA 1998)…PER CURIAM. Affirmed. See Bryant v. State, 708 So. 2d 321 (Fla. 3d DCA 1998); State v. DiGuilio, 491 So. 2d 1129 (Fla.1986); Salter v. State, 382 So. 2d 892 (Fla. 4th DCA 1980).…
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- State v. Tyner, 506 So. 2d 405 (Fla. 1987)