Johnson v. State

Florida District Courts of Appeal
Johnson v. State, 503 So. 2d 959 (1987)
12 Fla. L. Weekly 713; 1987 Fla. App. LEXIS 12028
Barfield, Joanos, Smith

Johnson v. State

Opinion of the Court

PER CURIAM.

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

After 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.

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

SMITH, JOANOS and BARFIELD, JJ., concur.

Reference

Full Case Name
Benjamin Levi JOHNSON v. STATE of Florida
Cited By
3 cases
Status
Published