Opinion
No. BD-92.
February 6, 1986.
Appeal from the Circuit Court for Duval County; Donald R. Moran, Jr., Judge.
Michael E. Allen, Public Defender and Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen. and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
ON MOTION FOR REHEARING AND SUGGESTION TO CERTIFY
On motion for rehearing and suggestion to certify the instant cause to the Florida Supreme Court, the state points out that subsequent to the release of our opinion in this case, the Florida Supreme Court released its opinion in State v. Jackson, 478 So.2d 1054 (Fla. 1985) in which the court agreed with the state's argument "that the presumptive sentence established by the guidelines does not change the statutory limits of the sentence imposed for a particular offense," and held "that a modification in the sentencing guidelines procedure, which changes how a probation violation should be counted in determining a presumptive sentence, is merely a procedural change, not requiring the application of the ex post facto doctrine."
In Wilkerson v. State, 480 So.2d 213 (Fla. 1st DCA 1985) this court, based on the supreme court opinion in Jackson, receded from Richardson v. State, 472 So.2d 1278 (Fla. 1st DCA 1985), on which this panel relied in vacating Jones's sentence. Therefore, we grant rehearing and affirm the sentence based on Jackson and Wilkerson. We also certify the following question which was certified in Wilkerson as one of great public importance:
WHETHER ALL SENTENCING GUIDELINES AMENDMENTS ARE TO BE CONSIDERED PROCEDURAL IN NATURE SO THAT THE GUIDELINES AS MOST RECENTLY AMENDED SHALL BE APPLIED AT THE TIME OF SENTENCING WITHOUT REGARD TO THE EX POST FACTO DOCTRINE.
AFFIRMED.
BOOTH, C.J., and MILLS, J., concur.