Harris v. State
| Decision Date | 01 March 1988 |
| Docket Number | No. 87-891,87-891 |
| Parties | 13 Fla. L. Weekly 566 Christopher HARRIS, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and N. Joseph Durant, Jr., Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen. and Ralph Barreira, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and HENDRY and NESBITT, JJ.
In 1986, Harris was sentenced in excess of the guidelines. The sole reason assigned for departure was that he had been adjudicated a habitual offender. Subsequently, Whitehead v. State, 498 So.2d 863 (Fla.1986), determined that this was an insufficient ground. Accordingly, in Harris v. State, 499 So.2d 48, 49 (Fla. 3d DCA 1986), we reversed
the enhancement beyond the sentencing guidelines pursuant to the Supreme Court's recent ruling in Whitehead v. State, 498 So.2d 863 (Fla.1986), and return[ed] the matter to the trial court for resentencing.
On remand, the trial court again deviated upward from the guidelines, assigning three grounds 1 to justify that action. Harris has again appealed and we again reverse, this time on the authority of Shull v. Dugger, 515 So.2d 748 (Fla.1987). 2
Shull holds clearly 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.
515 So.2d at 750. Since the only ground assigned for the first departure was the legally insufficient one concerning Harris's status as a habitual offender, Shull mandates the conclusion that no subsequent departure based on any other ground may be allowed to stand. The state argues that Shull should not have that effect in this case because reasons stated in the resentencing order were referred to, though not specifically adopted, in the first order. It is true that the initial order referred to Harris's being found a habitual offender in another accompanying order which so adjudicated him and that two of the reasons 3 upon which the resentencing was based were contained in that separate, "habitual offender" order. Nevertheless, we cannot read Shull's repeated references to "the reasons for departure in the original order" to mean anything but the grounds actually assigned for the first departure. The habitual offender order quite obviously does not qualify. We do not think, as the state suggests, that it elevates form over...
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Robinson v. State, 87-0562
...court may not rely on new reasons for departure, even where the initial grounds to depart were not in writing. See also Harris v. State, 520 So.2d 688 (Fla. 3d DCA 1988). However, here the defendant's status as an incorrigible person who had not been rehabilitated despite prior imprisonment......
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Williams v. State, 88-529
...flawed and reasons assigned insufficient; sentence vacated and cause remanded for resentencing within guidelines); Harris v. State, 520 So.2d 688, 689 (Fla. 3d DCA 1988) ("We cannot read Shull 's repeated references to 'the reasons for departure in the original order' to mean anything but t......
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Rangel v. State, 88-167
...2d DCA 1988) (en banc). See also Brumley v. State, 520 So.2d 275 (Fla.1988); Shull v. Dugger, 515 So.2d 748 (Fla.1987); Harris v. State, 520 So.2d 688 (Fla. 3d DCA 1988). VACATED AND ...