Miller v. State

Full title: WILLIAM THOMAS MILLER, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Fifth District

Date published: Feb 5, 1987

501 So. 2d 757 (Fla. Dist. Ct. App. 1987)

Opinion

No. 86-969.

February 5, 1987.

Appeal from the Circuit Court, Orange County, Emerson R. Thompson, Jr., J.

James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Miller appeals his conviction of burglary of a dwelling with a battery¹ and his sentence which resulted in a four-bracket departure beyond the presumptive sentence recommended by the guidelines.² We affirm the conviction, but vacate the sentence.

1 § 810.02(2), Fla. Stat. (1985).

2 Fla.R.Crim.P. 3.701.

The sole reason for the departure in this case was Miller's habitual offender status. This is no longer a valid reason to impose a departure sentence under the guidelines.³ Accordingly, we vacate the sentence and remand for resentencing.

3 Whitehead v. State, 498 So.2d 863 (Fla. 1986); Neeley v. State, 498 So.2d 690 (Fla. 5th DCA, 1986).

AFFIRM CONVICTION; VACATE SENTENCE AND REMAND FOR RESENTENCING.

UPCHURCH, C.J., and DAUKSCH and SHARP, JJ., concur.