Payne v. State (498 So. 2d 413, 1986)

PER CURIAM.

This is a petition to review Payne v. State, 480 So.2d 202 (Fla. 1st DCA 1985), in which the district court held that the trial court did not err in considering Payne’s habitual offender status as a reason for departure from sentencing guidelines. We find conflict with Whitehead v. State, 498 So.2d 863 (Fla.1986). While .we approve Payne’s conviction, we remand to the district court with directions to return this cause to the trial court for resentencing consistent with Whitehead.

It is so ordered.

McDonald, C.J., and ADKINS, BOYD, EHRLICH, SHAW and BARKETT, JJ., concur.

OVERTON, J., dissents with an opinion.

We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

OVERTON, Justice,

dissenting.

I dissent for the reasons expressed in my dissent in Whitehead v. State, 498 So.2d 863 (Fla.1986).