MEARNS v. STATE, 658 So.2d 172 (Fla.App. 4 Dist. 1995)

GEORGE MEARNS, APPELLANT, v. STATE OF FLORIDA, APPELLEE.

No. 95-0567.District Court of Appeal of Florida, Fourth District.
July 19, 1995.

Appeal of order denying rule 3.850 motion from the Circuit Court for Palm Beach County; Walter N. Colbath, Jr., Judge.

George Mearns, Sneads, pro se.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Ettie Feistmann, Asst. Atty. Gen., West Palm Beach, for appellee.

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On motion for rehearing, the motion is granted, the opinion is withdrawn and the following is substituted in its place.

Page 173

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.