Velazguez-Velazguez v. State

523 So. 2d 774, 13 Fla. L. Weekly 968, 1988 Fla. App. LEXIS 1503, 1988 WL 34004

Opinion

523 So.2d 774 (1988)

Julio VELAZGUEZ-VELAZGUEZ, Appellant,
v.
The STATE of Florida, Appellee.

No. 85-2549.

District Court of Appeal of Florida, Third District.

April 19, 1988.

Bennett H. Brummer, Public Defender and Henry H. Harnage, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen. and Debora J. Turner, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.

SCHWARTZ, Chief Judge.

The defendant appeals from an upward departure sentence which was solely based, as appropriately indicated on the score sheet, Torres-Arboledo v. State, 524 So.2d 403 (Fla. 1988), on the ground that the defendant was a habitual offender. Whitehead v. State, 498 So.2d 863 (Fla. 1986), holds that this ground is insufficient and the sentence is therefore reversed on that authority. Because it would be impermissible now to rely upon any other ground for deviation, Shull v. Dugger, 515 So.2d 748 (Fla. 1987); Harris v. State, 520 So.2d 688 (Fla. 3d DCA 1988), the cause is remanded for resentencing within the guidelines.