District Court of Appeal of Florida, Third District.
*1134 Bennett H. Brummer, Public Defender, and Rosa C. Figarola, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Avi J. Litwin, Assistant Attorney General, for appellee.
Before BARKDULL, NESBITT and GODERICH, JJ.
PER CURIAM.
In Smith v. State, 640 So. 2d 1257 (Fla. 3d DCA 1994), this court ordered Mark Smith's two convictions for attempted felony murder vacated. Thereafter, the trial judge vacated those convictions and immediately mistakenly signed a judgment reimposing the convictions and resentencing Smith. The state has conceded these convictions must be reversed and the case remanded for correction of the sentence imposed.
Defendant argues that as to the count which remains, on remand he is entitled to be sentenced within the guidelines, as the record cannot support a departure sentence. We disagree. This point was raised in Smith's earlier appeal and we affirmed the validity of his life-risking flight as a basis for a departure from the guidelines. Thus, this reason as a valid basis for a departure sentence is the law of the case. State v. Stabile, 443 So. 2d 398 (Fla. 4th DCA 1984).
Accordingly, we affirm in part, reverse in part, and remand for resentencing.
