Florida District Courts of Appeal, 1987

Allen v. State

Allen v. State
Florida District Courts of Appeal · Decided May 8, 1987 · Barfield, Thompson, Zehmer
506 So. 2d 1149; 12 Fla. L. Weekly 1190; 1987 Fla. App. LEXIS 8162 (Southern Reporter, Second Series)

Allen v. State

Opinion of the Court

ZEHMER, Judge.

James Miller Allen appeals his conviction for burglary and his sentence, which departed from the guidelines. We find no merit to appellant’s evidentiary issue, and therefore affirm his conviction. The trial court departed from the sentencing guidelines based solely on appellant’s status as a habitual offender. At the time of appellant’s sentencing, the Florida Supreme Court had not yet decided Whitehead v. State, 498 So.2d 863 (Fla. 1987). In view of that decision, the trial court’s reliance on appellant’s habitual offender status as a reason for departure from the guidelines was error. We therefore reverse the sentence and remand for resentencing. If the trial judge finds that there are other valid reasons to depart, he may do so.

AFFIRMED in part, REVERSED in part, and REMANDED.

THOMPSON and BARFIELD, JJ., concur.

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