Shull v. Dugger, No. 71162

CourtUnited States State Supreme Court of Florida
Writing for the CourtBARKETT; McDONALD
Citation12 Fla. L. Weekly 585,515 So.2d 748
Parties12 Fla. L. Weekly 585 John Garland SHULL, Petitioner, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent.
Docket NumberNo. 71162
Decision Date25 November 1987

Page 748

515 So.2d 748
12 Fla. L. Weekly 585
John Garland SHULL, Petitioner,
v.
Richard L. DUGGER, Secretary, Florida Department of Corrections, Respondent.
No. 71162.
Supreme Court of Florida.
Nov. 25, 1987.

Page 749

John Garland Shull, in pro. per.

Robert A. Butterworth, Atty. Gen., and Mark C. Menser, Asst. Atty. Gen., Tallahassee, for respondent.

BARKETT, Justice.

Petitioner seeks a writ of habeas corpus, alleging that he is entitled to be released from continued detention because his sentence has been served. We grant the writ and remand to the circuit court for proceedings consistent with this opinion.

On December 31, 1984, petitioner was sentenced to ten years for 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 resentencing. 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 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?

Id. at 1022. In response to the present petition for habeas corpus, however, the state advises that it will not pursue the certified question and concedes that petitioner is entitled to resentencing.

The state does suggest, however, that petitioner "is not entitled to release prior to resentencing since the trial court may be able to justify a departure from the sentencing guidelines." (Emphasis added). We decline to accept the state's position on this point.

Generally, when all of the reasons stated by the trial court in support of departure are found invalid, resentencing following remand must be within the presumptive guidelines sentence. Williams v. State, 492 So.2d 1308 (Fla.1986); Foister v. State, 510 So.2d 371 (Fla. 1st DCA 1987); Royal v. State, 508 So.2d 1313 (Fla. 2d DCA 1987); Carter v. State; 485 So.2d 1292 (Fla. 4th DCA), rev. denied, 494 So.2d 1149 (Fla.1986).

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204 practice notes
  • Felts v. State, No. BJ-413
    • United States
    • Court of Appeal of Florida (US)
    • January 14, 1988
    ...remand Page 1009 to overcome the presumption of invalidity by some further justification of the departure sentence. In Shull v. Dugger, 515 So.2d 748 (Fla.1987), involving a departure sentence which was arguably "presumptively invalid", 8 the supreme court rejected the State's suggestion th......
  • State v. Collins, No. SC05-108.
    • United States
    • United States State Supreme Court of Florida
    • June 5, 2008
    ...we: (A) explain that a resentencing is a de novo proceeding; (B) discuss the inapplicability of our decision in Shull v. Dugger, 515 So.2d 748 (Fla.1987), to habitual felony 985 So.2d 989 offender sentencing; (C) explain that our decision does not implicate double jeopardy concerns; and (D)......
  • State v. Fleming, No. SC06–1173.
    • United States
    • United States State Supreme Court of Florida
    • February 3, 2011
    ...but it was an upward departure sentence rather than a guidelines sentence. Isaac, 911 So.2d at 814–15. 7. Our holding in Shull v. Dugger, 515 So.2d 748, 750 (1987), “that a trial court may not enunciate new reasons for a departure sentence after the reasons given for the original departure ......
  • Moore v. State, No. BR-495
    • United States
    • Court of Appeal of Florida (US)
    • April 6, 1988
    ...point two, we reverse the departure sentence, and remand for resentencing within the recommended guidelines range. See Shull v. Dugger, 515 So.2d 748 (Fla.1987); Williams v. State, 492 So.2d 1308 (Fla.1986). Finally, we reverse point three and remand with directions to hold further proceedi......
  • Request a trial to view additional results
204 cases
  • Felts v. State, No. BJ-413
    • United States
    • Court of Appeal of Florida (US)
    • January 14, 1988
    ...remand Page 1009 to overcome the presumption of invalidity by some further justification of the departure sentence. In Shull v. Dugger, 515 So.2d 748 (Fla.1987), involving a departure sentence which was arguably "presumptively invalid", 8 the supreme court rejected the State's suggestion th......
  • State v. Collins, No. SC05-108.
    • United States
    • United States State Supreme Court of Florida
    • June 5, 2008
    ...we: (A) explain that a resentencing is a de novo proceeding; (B) discuss the inapplicability of our decision in Shull v. Dugger, 515 So.2d 748 (Fla.1987), to habitual felony 985 So.2d 989 offender sentencing; (C) explain that our decision does not implicate double jeopardy concerns; and (D)......
  • State v. Fleming, No. SC06–1173.
    • United States
    • United States State Supreme Court of Florida
    • February 3, 2011
    ...but it was an upward departure sentence rather than a guidelines sentence. Isaac, 911 So.2d at 814–15. 7. Our holding in Shull v. Dugger, 515 So.2d 748, 750 (1987), “that a trial court may not enunciate new reasons for a departure sentence after the reasons given for the original departure ......
  • Moore v. State, No. BR-495
    • United States
    • Court of Appeal of Florida (US)
    • April 6, 1988
    ...point two, we reverse the departure sentence, and remand for resentencing within the recommended guidelines range. See Shull v. Dugger, 515 So.2d 748 (Fla.1987); Williams v. State, 492 So.2d 1308 (Fla.1986). Finally, we reverse point three and remand with directions to hold further proceedi......
  • Request a trial to view additional results

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