Cusic v. State

512 So. 2d 309 (1987)

Greg Edward CUSIC, Appellant,
v.
STATE of Florida, Appellee.

No. 87-2362.

District Court of Appeal of Florida, Second District.

September 11, 1987.

PER CURIAM.

Greg Edward Cusic sought post-conviction relief in the trial court. Cusic contended that he was sentenced illegally because the trial judge departed from the recommended guidelines sentence for the reason that Cusic was an habitual offender. He claims the benefit of Whitehead v. State, 498 So. 2d 863 (Fla. 1986), which held that the habitual offender statute is not an exemption to the sentencing guidelines and does not furnish a basis for exceeding the recommended guidelines sentence.

Cusic was convicted and sentenced in 1985. His conviction and sentence were affirmed by this court. Cusic v. State, 490 So. 2d 950 (Fla. 2d DCA 1986). We affirm the denial of Cusic's motion on the authority of McCuiston v. State, 507 So. 2d 1185 (Fla. 2d DCA 1987). In so doing, we acknowledge conflict with Hall v. State, 511 So. 2d 1038 (Fla. 1st DCA 1987).

SCHEB, A.C.J., and SCHOONOVER and HALL, JJ., concur.