Opinion
No. 90-0205.
September 19, 1990. Rehearing Denied October 29, 1990.
Appeal from the Circuit Court, Broward County, M. Daniel Futch, Jr., J.
Richard L. Jorandby, Public Defender, and Tanja Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Georgina Jimenez-Oroso, West Palm Beach, for appellee.
Michael Carroll was charged with the taking of a diamond ring valued in excess of $300.00. The jury found him guilty. At sentencing, the trial court declared him a habitual offender, imposed ten years imprisonment and ordered restitution in the amount of $6,000.00. The maximum term of imprisonment for the crime Carroll committed was five years and the guidelines sentence ranged from twelve to thirty months. At the moment when Carroll stole the ring, the current version of the Habitual Offender Statute, section 775.084(4)(e), Florida Statutes (1988 Supp.), was not in effect. Thus, consistent with Whitehead v. State, 498 So.2d 863 (Fla. 1986), the trial court's departure from the guidelines based upon a determination that Carroll was a habitual offender was erroneous.
We reject the state's contention that the trial court's reliance upon Carroll's "contrary and persistent pattern of criminal activity demonstrating the futility of rehabilitation" warrants a departure sentence. The factors underlying that conclusion became a part of the guidelines' calculation and cannot be relied upon for departure. State v. Mischler, 488 So.2d 523 (Fla. 1986).
Accordingly, we reverse and vacate Carroll's sentence and remand this matter for resentencing within the guidelines. Shull v. Dugger, 515 So.2d 748 (Fla. 1987).
ANSTEAD and GUNTHER, JJ., concur.