Shull v. State, BR-329
| Decision Date | 01 September 1987 |
| Docket Number | No. BR-329,BR-329 |
| Citation | 512 So.2d 1021,12 Fla. L. Weekly 2097 |
| Parties | 12 Fla. L. Weekly 2097 John Garland SHULL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
John Garland Shull, pro se.
Robert A Butterworth, Atty. Gen., and Gregory G. Costas, Asst. Atty. Gen., Tallahassee, for appellee.
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)(11), 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 enunciated 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.
ON MOTION FOR STAY OF MANDATE AND SUGGESTION OF CERTIFICATION
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