Opinion
No. 86-1778.
March 6, 1987.
Appeal from the Circuit Court, Pinellas County, Claire K. Luten, J.
W. Thomas Wadley of Yanchuck, Thompson, Young, Berman Latour P.A., St. Petersburg, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Theda R. James, Asst. Atty. Gen., Tampa, for appellee.
This is the second appearance of this case before this court. The defendant was convicted of simple assault and throwing a deadly missile into an occupied vehicle. The trial court departed from the presumptive guidelines range and sentenced the defendant to twenty-three years in prison. On appeal, this court affirmed the defendant's conviction but vacated his sentence and remanded for resentencing. Smith v. State, 488 So.2d 593 (Fla. 2d DCA 1986).
On remand, the trial judge entered a written order on May 28, 1986, finding the defendant to be a habitual offender and, again, sentenced him to twenty-three years in prison. Once again the defendant has appealed.
In Whitehead v. State, 493 So.2d 863 (Fla. 1986), the supreme court held that the habitual offender statute, Section 775.084, Florida Statutes (1985), has been effectively subsumed by the sentencing guidelines and a finding that a defendant is a habitual offender cannot be relied upon as a reason for departure from the recommended guidelines sentence. Of course, the decision in Whitehead was rendered after the defendant was resentenced.
Accordingly, we vacate the defendant's sentence and remand to the trial court for resentencing. If the court chooses to depart from the recommended guidelines sentence, it must set forth in writing clear and convincing reasons justifying departure. Otherwise, the court shall resentence the defendant within the recommended range under the sentencing guidelines. The defendant shall be furnished notice of the resentencing and shall be entitled to be present.
Reversed and remanded.
DANAHY, C.J., and SCHOONOVER, J., concur.