Johnson v. State

• Decision Date: 05 March 1987
• Docket Number: No. BM-218,BM-218
• Citation: Johnson v. State, 503 So.2d 959, 12 Fla. L. Weekly 713 (Fla. App. 1987)
• Parties: 12 Fla. L. Weekly 713 Benjamin Levi JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 959

503 So.2d 959

12 Fla. L. Weekly 713

Benjamin Levi JOHNSON, Appellant, v. STATE of Florida, Appellee.

No. BM-218.

District Court of Appeal of Florida First District.

March 5, 1987.

Rehearing Denied March 27, 1987.

Michael E. Allen, Public Defender, David P. Gauldin, Tallahassee, for appellant.

Jim Smith, Atty. Gen., Royall P. Terry, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Defendant appeals his final judgment and sentence for battery and shooting into a building. We affirm the conviction but remand for resentencing.

After reviewing the briefs and record on appeal, we find no merit in defendant's arguments as they pertain to his conviction and adjudication of guilt. We do, however, find merit in defendant's contention that the trial court's written reason for departing from the presumptive guidelines sentence (habitual offender status) was not clear and convincing. After the trial court sentenced defendant, the Florida Supreme Court held that habitual offender status was not an adequate departure reason. Whitehead v. State, 498 So.2d 863 (Fla.1986); Holmes v. State, 502 So.2d 1302 (Fla. 1st DCA 1987). On resentencing, however, the trial court may still exceed the guidelines' sentence, provided there is a clear and convincing reason for the departure.

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