District Court of Appeal of Florida, First DistrictMay 8, 1987
506 So. 2d 1149 (Fla. Dist. Ct. App. 1987)

No. BN-349.

May 8, 1987.

Appeal from the Circuit Court, Duval County, R. Hudson Oliff, J.

Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Gary L. Printy, Asst. Atty. Gen., Tallahassee, for appellee.

James Miller Allen appeals his conviction for burglary and his sentence, which departed from the guidelines. We find no merit to appellant's evidentiary issue, and therefore affirm his conviction. The trial court departed from the sentencing guidelines based solely on appellant's status as a habitual offender. At the time of appellant's sentencing, the Florida Supreme Court had not yet decided Whitehead v. State, 498 So.2d 863 (Fla. 1987). In view of that decision, the trial court's reliance on appellant's habitual offender status as a reason for departure from the guidelines was error. We therefore reverse the sentence and remand for resentencing. If the trial judge finds that there are other valid reasons to depart, he may do so.

AFFIRMED in part, REVERSED in part, and REMANDED.