JOHN GARLAND SHULL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Garland Shull appeals the trial court's summary denial of his post-conviction relief motion challenging his departure sentence. The court reverses and remands, holding that a defendant may attack a departure sentence by post-conviction motion under rule 3.850 when the sole basis for departure—habitual offender status—was later declared invalid by subsequent supreme court decisions, even though the departure was previously approved on direct appeal.
Yes. A defendant is permitted to attack a departure sentence collaterally by rule 3.850 post-conviction motion when the sole basis for departure, though valid at the time imposed under then-existing appellate authority, is subsequently declared invalid by a supreme court decision changing the legal standard, and neither party nor the courts were aware the sentence was illegal when imposed.
[1] A defendant may attack a departure sentence by post-conviction motion under rule 3.850 on grounds enunciated in a subsequent Supreme Court decision, even if the departure…
[2] A motion for post-conviction relief is an appropriate vehicle to challenge the legality of a guidelines departure sentence based on a subsequent Supreme Court decision in…
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Join FLexlaw to unlock all legal intelligence“IS APPELLANT PERMITTED TO ATTACK COLLATERALLY THE LEGALITY OF HIS GUIDELINES DEPARTURE SENTENCE BY RULE 3.850 MOTION FOR POST-CONVICTION RELIEF ON THE BASIS THAT THE SOLE REASON FOR DEPARTURE, HIS STATUS AS A HABITUAL OFFENDER, ALTHOUGH VALID UNDER A LOWER APPELLATE COURT DECISION AT THE TIME IMPOSED, IS INVALID UNDER A SUBSEQUENTLY ISSUED SUPREME COURT DECISION”
Statement of the certified question to the Florida Supreme Court encapsulating the core legal issue in the case
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Join FLexlaw to unlock all legal intelligenceShull pled guilty to grand theft and was sentenced to ten years' imprisonment, a departure from the recommended guidelines sentence based on his habit…
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WIGGINTON, Judge.
John Garland Shull appeals the trial court’s summary denial of his motion for post-conviction relief. He pled guilty to grand theft and was sentenced to ten years’ imprisonment, a departure from the recommended guidelines sentence. This Court affirmed, holding that the trial court did not err in considering habitual offender status as a reason for departure under the guidelines. Shull v. State, 481 So. 2d 1294 (Fla. 1st DCA 1986). However, the cause was remanded for the trial court to provide its reasons in writing, in compliance with rule 3.701(d)(ll), Florida Rules of Criminal Procedure, even though the court had made written findings in the order sentencing Shull as a habitual felony offender. Subsequently, on December 19, 1986, Shull filed his motion for post-conviction relief alleging as error the trial court’s use of his habitual felony offender status as a reason to depart, citing in support the supreme court’s recent decision in Whitehead v. State, 498 So. 2d 863 (Fla.1987). Nonetheless, in its order denying relief, the trial court found that “it affirmatively appears from the record that [Shull] is not entitled to relief.” We disagree.
Just recently, this Court interpreted the supreme court’s decision in Bass v. State, 12 FLW 289 (Fla. June 11, 1987), as authorizing a defendant to attack his departure sentence by post-conviction motion under rule 3.850 on the grounds enunicated in Whitehead, despite the district court’s approval of that reason on direct appeal, in circumstances where, as here, neither the defendant, his attorney, the trial court, nor the district court of appeal were aware that the departure sentence was illegal. See Hall v. State, 511 So. 2d 1038 (Fla. 1st DCA 1987). Accordingly, we reverse the trial court’s denial of Shull’s motion for post-conviction relief and remand for further proceedings consistent with our decision in Hall.
REVERSED and REMANDED for further proceedings.
JOANOS and ZEHMER, JJ., concur. ON MOTION FOR STAY OF MANDATE AND SUGGESTION OF CERTIFICATION
PER CURIAM.
The Appellee/State’s motion for stay of mandate is denied; however, we grant the suggestion for certification and do hereby certify to the Florida Supreme Court the same issue previously certified to it in Hall v. State, 511 So. 2d 1038 (Fla. 1st DCA 1987), rev. pending, Case No. 71,078, to wit:
IS APPELLANT PERMITTED TO ATTACK COLLATERALLY THE LEGALITY OF HIS GUIDELINES DEPARTURE SENTENCE BY RULE 3.850 MOTION FOR POST-CONVICTION RELIEF ON THE BASIS THAT THE SOLE REASON FOR DEPARTURE, HIS STATUS AS A HABITUAL OFFENDER, ALTHOUGH VALID UNDER A LOWER APPELLATE COURT DECISION AT THE TIME IMPOSED, IS INVALID UNDER A SUBSEQUENTLY ISSUED SUPREME COURT DECISION ENUNCIATING A DIFFERENT CONSTRUCTION OF THE SENTENCING STATUTES AND SENTENCING GUIDELINES RULE?
JOANOS, WIGGINTON and ZEHMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)…r grand theft. This sentence constituted a departure from the recommended guidelines sentence based upon the habitual offender statute. The First District Court of Appeal reversed petitioner’s sentence and remanded for re-sentencing. Shull v. State, 512 So. 2d 1021 (Fla. 1st DCA 1987). The state then moved to stay the district court’s mandate and persuaded the court to certify the following question as one of great public importance: IS APPELLANT PERMITTED TO ATTACK COLLATERALLY THE LEGALITY OF HIS GUIDELINES…
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State v. Ransom Louis Collins, 985 So. 2d 985 (Fla. 2008)…re sentence based solely on the habitual offender statute. 515 So. 2d at 749. The defendant, citing Whitehead, filed a motion for post-conviction relief alleging error in the use of his habitual offender status as a reason to depart. Shull v. State, 512 So. 2d 1021, 1022 (Fla. 1st DCA 1987). The trial court denied his motion. The district court reversed. On review of the defendant’s petition for habeas corpus, we held that the “trial court may not enunciate new reasons for a departure sentence after the reason…
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Rowe v. State, 523 So. 2d 620 (Fla. 2d DCA 1988)…863 (Fla.1987), in which the supreme court disapproved the invocation of the habitual offender statute as a basis for departing from the guidelines. The trial court denied this motion, Shull appealed, and the district court reversed. Shull v. State, 512 So. 2d 1021 (Fla. 1st DCA 1987). See also, Hall v. State, 511 So. 2d 1038 (Fla. 1st DCA 1987).3 Upon suggestion by the state the district court certified the issue to the supreme court as being of great public importance. However, for reasons unclear from the e…
Authorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Hall v. State, 511 So. 2d 1038 (Fla. 1st DCA 1987)
- Shull v. State, 481 So. 2d 1294 (Fla. 1st DCA 1986)
- Kent Ins. Co. & Charles Atwood v. In re Est. OF Vealon Andrews Atwood, 481 So. 2d 1294 (Fla. 1st DCA 1986)