Paul Wayne NEW, Petitioner, v. STATE of Florida, Respondent, 807 So. 2d 52

PER CURIAM. We have for review the decision in New v. State, 765 So.2d 93 (Fla. 1st DCA 2000), which certified conflict with the decision in Crawford v. State, 735 So.2d 514 (Fla. 3d DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. FACTS Paul New pled guilty to three counts of robbery. On November 1, 1994, he was sentenced as a habitual violent felony offender and the court imposed concurrent terms of fifteen years’ incarceration with a minimum mandatory sentence of ten years pursuant to

section 775.084(4)(b). Subsequent to the imposition of petitioner’s sentence, this Court issued its opinion in State v. Hudson, 698 So.2d 831, 832 (Fla.1997), wherein we reiterated our previous holding that “sentencing under the habitual offender statute is permissive, not mandatory.” We concluded that this sentencing discretion extends to “determining whether to impose a mandatory minimum term.” 698 So.2d at 833.

Within two years of this ruling, New filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging that the trial court failed to recognize and exercise its discretion when it imposed his sentence. The trial court denied the motion as untimely. The First District Court of Appeal affirmed the trial court’s ruling, but certified conflict between Anthony v. State, 762 So.2d 528 (Fla. 2d DCA 2000), which held that Hudson did not apply retroactively, and Crawford v. State, 735 So.2d 514 (Fla. 3d DCA 1999), which applied Hudson retroactively.

This Court has previously announced that a change in decisional law should not be applied retroactively unless it so drastically alters the substantive or procedural underpinnings of a final conviction and sentence that individual instances of obvious injustice would otherwise exist. Accordingly, for a change of law to be applied retroactively it must: (1) originate in this Court or the United States Supreme Court; (2) be constitutional in nature; and (3) represent a development of fundamental significance. Witt v. State, 387 So.2d 922, 931 (Fla.1980).

Applying the teachings of Witt, we conclude that Hudson is not constitutional in nature and does not represent a development of fundamental significance but is merely an evolutionary refinement which makes clear that under

section 775.084 a trial court has discretion in whether or not to impose a mandatory minimum sentence. Accordingly, we approve the First District’s decision. It is so ordered. WELLS, C.J., and SHAW, HARDING, LEWIS, and QUINCE, JJ., concur. ANSTEAD, J., dissents with an opinion, in which PARIENTE, J., concurs. PARIENTE, J., dissents with an opinion, in which ANSTEAD, J., concurs. .

Section 775.084(4)(b)2, Florida Statutes (1993), provides in relevant part: (

b) The court, in conformity with the procedure established in subsection (3), may sentence the habitual violent felony offender as follows: 2. In the case of a felony of the second degree, for a term of years not exceeding thirty, and such offender shall not be eligible for release for 10 years. . See Walsingham v. State, 602 So.2d 1297, 1297 (Fla.1992) (stating that "sentencing under the habitual offender statute is permissive, not mandatory”); Burdick v. State, 594 So.2d 267, 271 (Fla.1992) (holding that "sentencing under sections 775.084(4)(a)(

l) and 775.084(4)(b)(

l) is permissive, not mandato-iy"). . Generally, in a noncapital case, a motion for postconviction relief must be filed within two years from the date that the judgment and sentence become final. However, a petitioner may file a 3.850 motion beyond this two-year bar if the motion relies on a "fundamental constitutional right [that] was not established within the period provided for herein and has been held to apply retroactively.” Fla. R.Crim. P. 3.850(b)(2). New asserts that his motion for postconviction relief is timely because it is based on a new right established by this Court in Hudson.