
    Thomas W. STAHLBERG, Appellant, v. STATE of Florida, Appellee.
    No. 92-2661.
    District Court of Appeal of Florida, Fifth District.
    Jan. 22, 1993.
    Upon Motion for Rehearing March 12, 1993.
    Thomas W. Stahlberg, Sneads, pro se.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED. Goodson v. State, 608 So.2d 943 (Fla. 5th DCA 1992).

COBB, GRIFFIN and DIAMANTIS, JJ., concur.

UPON MOTION FOR REHEARING

Appellant’s timely motion for rehearing is granted in light of the Florida Supreme Court’s decision in State v. Johnson, 616 So.2d 1 (Fla.1993) and we reverse the lower court’s summary denial of appellant’s 3.850 motion. Appellant is entitled to a hearing to determine whether, in fact, his sentencing as an habitual offender was illegal in that he lacked the requisite predicate convictions in this state. Also, we are unable to determine, based on the record before us, whether appellant’s present 3.850 motion should be denied as successive. It does appear that, if habitual offender treatment is unavailable, the state is free to withdraw from the plea agreement, try the defendant on all charges and seek any lawful sentence. Hayes v. State, 598 So.2d 135, 138 (Fla. 5th DCA 1992); Jolly v. State, 392 So.2d 54, 56 (Fla. 5th DCA 1981).  