501 So. 2d 757 - Miller v. State

PER CURIAM.

¶1Miller appeals his conviction of burglary of a dwelling with a battery1 and his sentence which resulted in a four-bracket departure beyond the presumptive sentence recommended by the guidelines.2 We affirm the conviction, but vacate the sentence.

¶2The sole reason for the departure in this case was Miller’s habitual offender status. This is no longer a valid reason to impose a departure sentence under the guidelines.3 Accordingly, we vacate the sentence and remand for resentencing.

¶3AFFIRM CONVICTION; VACATE SENTENCE AND REMAND FOR RE-SENTENCING.

UPCHURCH, C.J., and DAUKSCH and SHARP, JJ., concur.

¶4. § 810.02(2), Fla.Stat. (1985).

¶5. FIa.R.Crim.P. 3.701.

¶6. Whitehead v. State, 498 So.2d 863 (Fla.1986); Neeley v. State, 498 So.2d 690 (Fla. 5th DCA, 1986).