Murray v. State, 91-1450

• Decision Date: 17 June 1992
• Docket Number: No. 91-1450,91-1450
• Citation: 602 So.2d 583
• Parties: Bobby MURRAY, Appellant, v. STATE of Florida, Appellee. 602 So.2d 583, 17 Fla. L. Week. D1513
• Court: Florida District Court of Appeals

Page 583

602 So.2d 583

Bobby MURRAY, Appellant, v. STATE of Florida, Appellee.

No. 91-1450.

602 So.2d 583, 17 Fla. L. Week. D1513

District Court of Appeal of Florida,

Fourth District.

June 17, 1992.

Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Melynda Melear, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

We affirm appellant's conviction but reverse the sentence. On remand, the trial court shall make specific findings on the record pursuant to sections 775.084(1)(a) and 775.084(3)(d), Florida Statutes (1989), to support the habitual offender sentence. See Walker v. State, 462 So.2d 452 (Fla.1985) (failure to object in trial court to habitual offender sentence without statutory findings does not bar defendant from raising issue on direct appeal from sentence); King v. State, 580 So.2d 169 (Fla. 4th DCA 1991) (en banc) (upon remand from defective habitual offender sentence, trial court is free to reimpose habitual offender sentence upon compliance with requirement for statutory findings); Bryant v. State, 602 So.2d 582 (Fla. 4th DCA 1992) (same).

We also adopt the question certified in Van Bryant as one of great public importance.

CONVICTION AFFIRMED; SENTENCE REVERSED AND REMANDED WITH DIRECTIONS.

ANSTEAD and WARNER, JJ., concur.

FARMER, J., specially concurs with opinion.

FARMER, Judge, specially concurring.

If I were writing on a clean slate, and I recognize that I am not, I would instruct the trial court on remand that appellant's sentence must be limited to one within the guidelines and in no event greater than the one provided by law for his conviction. I thus disagree with our decision in King v. State, 580 So.2d 169 (Fla. 4th DCA 1991) (en banc), in which we held that, after an invalid attempt to impose a habitual offender sentence, the trial court is free to reimpose the same habitual offender sentence so long as it complies with the statutory requirements for express findings as to two previous qualifying offenses, one of which was final within the preceding 5 years, and which were not pardoned or set aside later.

To reach the result in King, we had to recede from our decision in Pollard v. State, 561 So.2d 29 (Fla. 4th DCA 1990). Pollard was based on Shull v. Dugger, 515 So.2d 748 (Fla.1987), where the court held that, after a habitual offender sentence had been reversed because it was based on invalid reasons, the resentencing is limited to the guidelines. More recently, in Pope v. State, 561 So.2d 554 (Fla.1990), the court held that resentencing after a defective guidelines departure is also limited to a sentence within the guidelines.

In Shull, the court explained:

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 resentencings...