to comply with this Court’s mandate by departing from the guidelines. We find that the upward departure sentence imposed upon remand does not conflict with this Court’s mandate and is consistent with case law. Indeed, this Court has recognized that a trial court “may in its discretion consider a departure sentence at resentencing” where it had mistakenly believed that habitualization was permissible. Lovett v. State, 773 So.2d 574, 576 (Fla. 3d DCA 2000). Delevaux also argues that the trial court was vindictive because it imposed a harsher sentence on remand. We disagree. No judicial vindictiveness occurred in this case because the sentences imposed on remand do not exceed Delevaux’s original sentence. See North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)(<HOLDING>). The court initially sentenced Delevaux as a
holding that a federal sentence commences when the attorney general receives the convicted defendant into custody for service of that sentence holding that a court may not impose a harsher sentence on a defendant who successfully challenges his sentence on appeal holding that the imposition of a harsher sentence after trial than what had been offered by the state pretrial does not create a presumption of vindictiveness holding that the presumption of vindictiveness only applies when the new sentence is actually harsher than that imposed prior to the successful appeal holding that a judge who imposes a more severe sentence after the original sentence is successfully attacked must affirmatively state objective reasons for the harsher sentence to ensure that vindictiveness against the defendant plays no part in the sentence he receives after a new trial