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528 So. 2d 416

528 So.2d 416

13 Fla.L.Weekly 1393

Gilmore v. State

District Court of Appeal of Florida · decided 1988-06-08

Relies on 498 So. 2d 863 - Whitehead v. State · 511 So. 2d 1038 - Hall v. State · 507 So. 2d 1185 - McCuiston v. State

Decided 1988-06-08

PER CURIAM.

¶1Barry Paul Gilmore appeals the denial of his motion to correct sentence. Gilmore contends he was sentenced illegally because the trial judge departed from the recommended guideline sentence for the sole reason that Gilmore was an habitual offender. Gilmore did not appeal his departure sentence. Subsequently, our supreme court decided Whitehead v. State, 498 So.2d 863 (Fla.1986), which held that the habitual offender statute is not an exemption to the sentencing guidelines and does not furnish a basis for exceeding the recommended guideline sentence.

¶2In his motion to correct sentence, Gilmore sought to retroactively claim the benefit of Whitehead. We have previously held that Whiteheadshould not be applied *417retroactively. Rowe v. State, 523 So.2d 620 (Fla. 2d DCA 1988); Cusic v. State, 512 So.2d 309 (Fla. 2d DCA 1987); McCuiston v. State, 507 So.2d 1185 (Fla. 2d DCA 1987).

¶3We affirm and again certify conflict with Hall v. State, 511 So.2d 1038 (Fla. 1st DCA 1987).

RYDER, A.C.J., and CAMPBELL and LEHAN, JJ., concur.
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