Johnson v. Singletary

708 So. 2d 321, 1998 Fla. App. LEXIS 2667, 1998 WL 117756

Opinion

PER CURIAM.

The petitioner, Charles Johnson, seeks a writ of habeas corpus based on ineffective assistance of appellate counsel. We grant the petition and remand for resentencing within the guidelines.

In the instant ease, although the petitioner’s trial counsel correctly argued that a departure from the sentencing guidelines cannot be based on prior offenses for which no conviction was obtained, the trial court nonetheless entered a departure sentence. See State v. Tyner, 506 So.2d 405, 406 (Fla.1987). Because the petitioner’s appellate counsel failed to raise this issue on appeal, we agree with the petitioner that he was denied effective assistance of appellate counsel. Accordingly, we grant the petition and remand for resentencing within the guidelines.

Petition granted; remanded for resentenc-ing.