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523 So. 2d 1264

523 So.2d 1264

13 Fla.L.Weekly 1041

Hansbrough v. State

District Court of Appeal of Florida · decided 1988-04-28

Relies on 498 So. 2d 863 - Whitehead v. State · 515 So. 2d 748 - Shull v. Dugger · 516 So. 2d 24 - Early v. State

Decided 1988-04-28

COBB, Judge.

¶1Hansbrough was convicted of a third-degree felony and a first-degree misdemean- or. His presumptive guideline sentence was two-and-a-half to three-and-a-half years. At sentencing, in January, 1986, the trial court determined him to be an habitual offender and imposed a ten-year enhanced sentence. The only reason given for departure was the habitual offender determination. Hansbrough appeals from the denial of a motion to correct his sentence pursuant to Florida Rule of Criminal Procedure 3.800(a) based on the trial court’s use of the habitual offender determination to exceed the guidelines.

¶2Habitual offender status is not a clear and convincing reason for departure. Whitehead v. State, 498 So.2d 863 (Fla.1986). A departure sentence rendered improper by Whiteheadis subject to correction via a post-conviction motion to correct sentence under Florida Rule of Criminal Procedure 3.800(a) or a post-conviction motion to vacate sentence under Florida Rule of Criminal Procedure 3.850. See Early v. State, 516 So.2d 24, 25 (Fla. 3d DCA 1987).

¶3Accordingly, we reverse Hansbrough’s sentence and remand for imposition of a guideline sentence pursuant to Shull v. Dugger, 515 So.2d 748 (Fla.1987).

¶4REVERSED and REMANDED.

SHARP, C.J., and COWART, J., concur.
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