Florida District Courts of Appeal, 1987

Miller v. State

Florida District Courts of Appeal · Decided February 5, 1987 · Dauksch, Sharp, Upchurch

501 So. 2d 757; 12 Fla. L. Weekly 440; 1987 Fla. App. LEXIS 6718 (Southern Reporter, Second Series)

Opinion of the Court

PER CURIAM.

Miller 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.

The 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.

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

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

. § 810.02(2), Fla.Stat. (1985).

. FIa.R.Crim.P. 3.701.

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

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