Opinion
No. BL-132.
December 10, 1986.
Appeal from the Circuit Court, Bay County, Judy M. Pittman, J.
Michael E. Allen, Public Defender, and Ann Cocheu, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and Henry C. Cawthon, Asst. Atty. Gen., Tallahassee, for appellee.
Strong was convicted of grand theft, and based on his repeated convictions for theft was determined to be an habitual offender pursuant to s. 775.084 Florida Statutes. The lower court aggravated appellant's sentence based on his habitual offender status and exceeded the recommended guidelines sentence.
Appellant seeks resentencing on three grounds: (1) he was not afforded due process when contesting the facts relied on by the trial court when it determined him to be an habitual offender; (2) the trial court failed to make specific findings of fact that the extended sentence was necessary for the protection of the public; and (3) his habitual offender status was an improper reason for deviating from the recommended guidelines sentence. We find no merit in appellant's grounds one and two. However the Florida Supreme Court recently held that the habitual offender status is an improper reason for departure from the recommended guidelines sentence. In Whitehead v. State the court stated that the objectives and considerations of the habitual offender status are fully accommodated by the sentencing guidelines. 498 So.2d 863 (Fla. 1986).
Accordingly, we affirm the judgment but reverse the sentence and remand for a new sentence consistent with Whitehead v. State.
MILLS and SHIVERS, JJ., concur.