Opinion
No. 84-1979.
November 13, 1985. Rehearing Denied December 11, 1985.
Appeal from the Circuit Court, Palm Beach County, Maurice J. Hall, J.
Richard L. Jorandby, Public Defender and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Penny H. Brill, Asst. Atty. Gen., West Palm Beach, for appellee.
ON MOTION FOR REHEARING
The Petition for Rehearing is granted. The original opinion is withdrawn and we substitute the following:
This cause is affirmed. At the conclusion of the trial, appellant elected to postpone a decision on sentencing under the guidelines. At the sentencing hearing in August of 1984, he elected to be sentenced under the guidelines in effect before the July 1, 1984, amendment. He is unable to do so because either the guidelines in existence on the date of the commission of the crime or those in existence on the day of sentencing apply. See Miller v. State, 468 So.2d 1018 (Fla. 4th DCA 1985). In this case, there were no guidelines in existence on the date the crime took place so that the defendant could only be sentenced according to the guidelines in effect on the date of sentencing. Cone v. State, 469 So.2d 945 (Fla. 5th DCA 1985). The alternative would be to be sentenced outside the guidelines altogether, an option which the defendant did not exercise.
DOWNEY and WALDEN, JJ., concur.