Capote v. State

Full title: PEDRO CAPOTE, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Third District

Date published: Jun 2, 1987

507 So. 2d 1191 (Fla. Dist. Ct. App. 1987)

Opinion

No. 85-2527.

June 2, 1987.

An Appeal from the Circuit Court for Monroe County; David P. Kirwan, Judge.

Bennett Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen. and Nancy C. Wear, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and BASKIN and DANIEL S. PEARSON, JJ.

On Motion to Relinquish Jurisdiction

PER CURIAM.

Prior to Whitehead v. State, 498 So.2d 863 (Fla. 1986), the trial judge deviated upward from the guidelines on the sole ground that the defendant had been declared a habitual offender under section 775.084, Florida Statutes (1985). In response to the brief of appellant, which raises this issue as the sole point on appeal, the state has filed a "motion to relinquish jurisdiction" to the trial court, which we take as a confession of error. Pursuant thereto, the sentence imposed below is reversed on the authority of Whitehead and the cause is remanded for appropriate re-sentencing.