Opinion
No. 68180.
November 13, 1986. Rehearing Denied January 5, 1987.
Application for Review of the Decision of the District Court of Appeal — Direct Conflict of Decisions; First District — Case No. BA-314.
Michael E. Allen, Public Defender, Second Judicial Circuit, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for petitioner.
Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, and Kenneth Muszynski, Asst. Atty. Gen., Tallahassee, for respondent.
This is a petition to review Payne v. State, 480 So.2d 202 (Fla. 1st DCA 1985), in which the district court held that the trial court did not err in considering Payne's habitual offender status as a reason for departure from sentencing guidelines. We find conflict with Whitehead v. State, 498 So.2d 863 (Fla. 1986). While we approve Payne's conviction, we remand to the district court with directions to return this cause to the trial court for resentencing consistent with Whitehead.
We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.
It is so ordered.
McDonald, C.J., and ADKINS, BOYD, EHRLICH, SHAW and BARKETT, JJ., concur.
OVERTON, J., dissents with an opinion.
I dissent for the reasons expressed in my dissent in Whitehead v. State, 498 So.2d 863 (Fla. 1986).