On direct appeal, the Florida First District Court of Appeal affirmed Cumbie's conviction but remanded for resentencing. Cumbie v. State, 539 So.2d 538 (Fla. 1st DCA 1989). The court discussed only the merits of the sentencing issue and stated, "We find no merit to the remaining issues."
This is the third time that this criminal case has been before us for review. In Cumbie v. State, 539 So.2d 538 (Fla. 1st DCA 1989), we affirmed appellant's conviction of attempted capital sexual battery, but vacated the sentence and remanded for resentencing. In Cumbie v. State, 562 So.2d 845 (Fla. 1st DCA 1990), we affirmed the departure sentence imposed on remand, but certified as a question of great public importance whether the reason used by the trial court to justify the departure sentence was legally sufficient.
PER CURIAM. Cumbie has appealed from a guidelines departure sentence for attempted capital sexual battery, imposed following this court's reversal and remand for re-sentencing in Cumbie v. State, 539 So.2d 538 (Fla. 1st DCA 1989). We affirm on both issues raised herein, but as we did in Wilson v. State, 548 So.2d 874 (Fla. 1st DCA 1989), review pending Case No. 74,872, certify the following question as one of great public importance: