BOBBY MURRAY, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that a defendant must rebut the presumption that predicate convictions for habitual offender status have not been pardoned or set aside.
Murray argued he could not be resentenced as an habitual offender because the trial court failed to make specific findings that his predicate convicti…
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SHAW, Justice.
We have for review Murray v. State, 602 So. 2d 583 (Fla. 4th DCA 1992), based on conflict with State v. Rucker, 613 So. 2d 460 (Fla.1993). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We quash the district court decision in Murray.
When Murray was sentenced under section 775.084, Florida Statutes (1989), as an habitual felony offender, the trial court failed to make specific findings that the predicate convictions had not been pardoned or set aside. The district court re versed and remanded, giving the court an opportunity to make the findings. In Rucker, we held that remanding may be unnecessary since appellate courts are authorized to apply harmless error analysis to this particular sentencing error. Accordingly, we quash the decision of the district court below and remand for proceedings consistent with Rucker. It is so ordered.
overton, McDonald, grimes, KOGAN and HARDING, JJ., concur. BARKETT, C.J., concurs specially with an opinion, in which GRIMES and KOGAN, JJ., concur.
BARKETT, Chief Justice,
specially concurring.
Relying on Judge Farmer’s opinion below and this Court’s decision in Shull v. Dugger, 515 So. 2d 748 (Fla.1987), Murray argues that he cannot be resentenced as an habitual offender because the trial court failed to make specific findings that Murray’s predicate convictions had not been pardoned or set aside. See § 775.-084(l)(b)(3), Fla.Stat. (1989).
Shull is inapposite to the present case. The trial court in Shull sentenced the defendant under the sentencing guidelines, but impermissibly departed from the guidelines based upon the habitual offender statute. Id.; see Whitehead v. State, 498 So. 2d 863, 866-67 (Fla.1986) (holding that the habitual offender statute may not be used as a basis for departing from the guidelines). The issue addressed in Shull was the danger of developing after-the-fact reasons for departure sentences.
We see no reason for making an exception to the general rule requiring resentencing within the guidelines merely because the illegal departure was based upon only one invalid reason rather than several. We believe the better policy requires the trial court to articulate all of the reasons for departure in the original order. To hold otherwise may needlessly subject the defendant to unwarranted efforts to justify the original sentence and also might lead to absurd results. One can envision numerous resen-tencings as, one by one, reasons are rejected in multiple appeals.
515 So. 2d at 750 (emphasis added); see Pope v. State, 561 So. 2d 554, 556 (Fla.1990) (“[W]e hold that when an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines.”). Such a danger does not exist here. Consequently, Shull does not control.
This case does not involve a departure sentence. Murray was sentenced as an habitual offender. Majority op. at 955. The error made by the trial court was failure to make specific findings that the predicate offenses upon which Murray’s sentence was based had not been set aside or pardoned. State v. Rucker, 613 So. 2d 460 (Fla.1993). However, as we said in Rucker, “where the State has introduced unrebutted evidence — such as certified copies — of the defendant’s prior convictions, a court may infer that there has been no pardon or set aside.” 613 So. 2d at 462. Accordingly, Rucker holds that it is an appropriate presumption that the predicate convictions on the record are valid. The defendant must rebut that presumption that valid convictions have not been pardoned or set aside. Eutsey v. State, 383 So. 2d 219 (Fla.1980).
GRIMES and KOGAN, JJ., concur.
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State v. Ransom Louis Collins, 985 So. 2d 985 (Fla. 2008)…implicit in our ruling in Shull “was our desire to preclude the possibility of a judge providing an after-the-fact justification for a previously imposed departure sentence.” Jones v. State, 559 So. 2d 204, 206 (Fla.1990); see also Murray v. State, 616 So. 2d 955, 956 (Fla.1998) (Barkett, C.J., specially concurring) (“The issue addressed in Shull was the danger of developing after-the-fact reasons for departure sentences.”). Such a danger does not exist here. A judge imposing a habitual offender sentence nee…
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Murray v. State, 622 So. 2d 1342 (Fla. 4th DCA 1993)…eme court quashed our decision and returned the case to us for a determination as to whether it is really necessary in light of State v. Rucker, 613 So. 2d 460 (Fla.1993), to send this case back to the trial court for resentenc-ing. Murray v. State, 616 So. 2d 955 (Fla.1993). We now turn to that determination. At the original sentencing hearing, the trial court made no express findings as to any of the HFO statutory criteria. Although the record shows that one month before the sentencing hearing the state ha…
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Walker v. State, 112 So. 3d 608 (Fla. 4th DCA 2013)…. Dugger, 515 So. 2d 748 (Fla.1987). Shull held that a trial court may not enunciate new reasons for a departure sentence after the reasons given for the original departure sentence have been reversed by an appellate court. See also Murray v. State, 616 So. 2d 955, 956 (Fla.1993) (Barkett, C.J., specially concurring) (“The issue addressed in Shull was the danger of developing after-the-fact reasons for departure sentences.”). This court reversed Walker’s sentence because his conviction for second degree murd…
Authorities Cited
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- State v. Rucker, 613 So. 2d 460 (Fla. 1993)
- Murray v. State, 602 So. 2d 583 (Fla. 4th DCA 1992)