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503 So. 2d 959

503 So.2d 959

12 Fla.L.Weekly 713

Johnson v. State

District Court of Appeal of Florida · decided 1987-03-05

Cited by 2 later decisions — most recently August 1987

2 state decisions

Relies on 498 So. 2d 863 - Whitehead v. State · 502 So. 2d 1302 - Holmes v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1987-03-05

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PER CURIAM.

¶1Defendant appeals his final judgment and sentence for battery and shooting into a building. We affirm the conviction but remand for resentencing.

¶2After reviewing the briefs and record on appeal, we find no merit in defendant’s arguments as they pertain to his conviction and adjudication of guilt. We do, however, find merit in defendant’s contention that the trial court’s written reason for departing from the presumptive guidelines sentence (habitual offender status) was not clear and convincing. After the trial court sentenced defendant, the Florida Supreme Court held that habitual offender status was not an adequate departure reason. Whitehead v. State, 498 So.2d 863 (Fla.1986); Holmes v. State, 502 So.2d 1302 (Fla. 1st DCA 1987). On resentencing, however, the trial court may still exceed the guidelines’ sentence, provided there is a clear and convincing reason for the departure.

¶3The judgment is AFFIRMED, but the sentence is REVERSED and the case RE*960MANDED for further sentencing proceedings.

SMITH, JOANOS and BARFIELD, JJ., concur.
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