Mearns v. State

658 So. 2d 172, 1995 Fla. App. LEXIS 7694, 1995 WL 423190

Opinion

ON MOTION FOR REHEARING

PER CURIAM.

On motion for rehearing, the motion is granted, the opinion is withdrawn and the following is substituted in its place.

Reversed. See Ashley v. State, 614 So.2d 486 (Fla.1993); Thompson v. State, 638 So.2d 116 (Fla. 5th DCA), review granted, 649 So.2d 234 (Fla.1994); and Smith v. State, 642 So.2d 69 (Fla. 5th DCA 1994), review granted, 651 So.2d 1196 (Fla.1995). We remand for resentencing at which time appellant should be given the opportunity to withdraw his plea and proceed to trial. Should he elect to enter a plea of nolo or guilty, the court in its discretion may sentence him as an habitual offender if the requirements of section 775.084 and Ashley are met. State v. Wilson, 658 So.2d 521 (Fla.1995).

Reversed and remanded.

WARNER, POLEN and FARMER, JJ., concur.