STATE of Florida, Petitioner, v. Ransom Louis COLLINS, Respondent, 985 So. 2d 985

CANTERO, J. We must decide whether, when a criminal sentence is reversed on appeal because of insufficient evidence of the defendant’s habitual offender status, upon remand for resentencing the State may present new evidence on that issue. We review Collins v. State, 893 So.2d 592 (Fla. 2d DCA 2004), in which the Second District Court of Appeal held that the State could not present new evidence on remand. It certified conflict with several decisions from other districts: Wilson v. State, 830 So.2d 244 (Fla. 4th DCA 2002); Cameron v. State, 807 So.2d 746 (Fla. 4th DCA 2002); Morss v.

State, 795 So.2d 262 (Fla. 5th DCA 2001); Roberts v. State, 776 So.2d 1034 (Fla. 4th DCA 2001); Rhodes v. State, 704 So.2d 1080 (Fla. 1st DCA 1997); and Brown v. State, 701 So.2d 410 (Fla. 1st DCA 1997). We have jurisdiction to resolve the certified conflict. See art. V, § 3(b)(4), Fla. Const. We hold that the State may indeed present additional evidence on remand. Below we discuss the conflict in the district courts and then explain our holding. I. THE DECISIONS IN CONFLICT The respondent, Ransom Louis Collins, pled no contest to robbery. The State sought to sentence him as a habitual felony offender.

To that end, at sentencing it presented evidence of several previous felony convictions. Defense counsel argued, however, that the evidence failed to demonstrate that his prior convictions were “separately sentenced,” as the habitual offender statute,

section 775.084(5), Florida Statutes (2001), requires. The trial court overruled the objection and sentenced Collins as a habitual felony offender to twenty years in prison. On appeal, the Second District reversed the sentence because the State presented insufficient evidence establishing the predicate convictions. As the court noted: [T]he State concedes that the documents presented to the trial court failed to preclude the possibility that all of Collins’s prior felony offenses were originally sentenced on the same date.

Although the record contains evidence that Collins has been convicted of a number of felonies, many of the documents used as evidence of convictions were in fact orders that revoked probation. The orders revoking probation do not disclose when Collins was originally sentenced to probation, only the date of revocation. ... The State concedes that where probation was imposed and subsequently revoked with the imposition of a prison sentence, the date of the original imposition of probation is the date that must be used in determining whether the offense was separately sentenced under

section 775.084(5). Collins, 893 So.2d at 593-94. The Second District prohibited the State from correcting the error on remand by producing additional evidence. Id. The district court held that, where the defendant objects to a habitual felony offender sentence because the State failed to present sufficient evidence of the predicate convictions, and the appellate court reverses the sentence on that basis, the State cannot present additional evidence on remand. 893 So.2d at 594.

The court noted “that a different rule applies where the defendant has failed to make a proper objection during the sentencing proceeding to the basis for the habitual offender sentence.” Id. at 594 n. 2 (citing Bover, 797 So.2d at 1251). Thus, in the Second District, where the State fails to present sufficient evidence that the defendant was a habitual felony offender and the defendant objects, the State cannot present additional evidence on remand. The Second District’s holding conflicts with the law in the majority of districts.

The court certified conflict with decisions of the First, Fourth, and Fifth District Courts of Appeal, which allowed the State to prove the predicate convictions on remand even though the defense had objected at sentencing.

Id. at 594; see Wilson, 830 So.2d at 245 (permitting resentencing as a habitual felony offender on remand if the State can establish the required predicate convictions and the identity of the defendant as the person named in the judgments of conviction); Cameron, 807 So.2d at 747-48 (permitting resentencing as a habitual felony offender if the State introduces sufficient evidence to establish the defendant’s release date within the five-year window); Morss, 795 So.2d at 263 (permitting resentencing as a habitual felony offender on remand following a reversal for failure to present copies of the prior felony judgments and sentences); Roberts, 776 So.2d at 1034 (permitting re-sentencing as a habitual felony offender on remand upon proper proof); Brown, 701 So.2d at 410 (permitting resentencing as a habitual felony offender on remand upon presentation of proper proof that the defendant was the person named in the certified copies of judgments and convictions); see also Walker v.

State, 988 So.2d 6, 8, 2007 WL 4462982 (Fla. 2d DCA Dec.21, 2007) (Altenbernd, J., concurring specially) (“Were we writing on a clean slate, I would follow the First, Fourth, and Fifth Districts in concluding that this evidentiary error does not preclude the State from seeking a habitual felony offender sentence on remand.”). We now resolve the conflict. II. ANALYSIS Before addressing the conflict issue, we must note the issues we do not resolve. The State has conceded that the evidence at sentencing was insufficient to sentence Collins as a habitual felony offender.

Thus, the sufficiency of the evidence is not before us. Likewise, in Bover, we held that when the defense fails to object to the sufficiency of the evidence, the State may present additional evidence of habitual felony offender status. See Bover, 797 So.2d at 1251. Therefore, we do not decide that issue, either. Finally, we do not here eon-sider the effect on resentencing proceedings of two recent United States Supreme Court cases: Apprendi v.

New Jersey, 530 U.S. 466, 491, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that all facts that would enhance the defendant’s sentence above the statutory maximum must be found by a jury), and Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (holding that, for purposes of Apprendi, the statutory maximum is the maximum sentence that may be imposed based solely on the jury’s findings).

What we do address is the narrow question left open in Bover: when the defendant does object at sentencing to the sufficiency of the State’s evidence supporting the habitual felony offender sentence, and on appeal the district court reverses on that basis, on remand for resentencing may the State present new evidence that the defendant is a habitual felony offender? Our answer is yes. We hold that because resentencing is a de novo proceeding, on remand the State may present additional evidence to prove that the defendant qualifies for habitual felony offender sentencing. In the following discussion, 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 offender sentencing; (

C) explain that our decision does not implicate double jeopardy concerns; and (

D) explain that resentencing as a habitual felony offender does not violate due process. A. Resentencing as a New Proceeding In both capital and noncapital cases, we have held that resentencing is a new proceeding. In death penalty cases, we have stated that “[t]he basic premise of sentencing procedure is that the sentencer is to consider all relevant evidence regarding the nature of the crime and the character of the defendant to determine appropriate punishment.” Wike v. State, 698 So.2d 817, 821 (Fla.1997).

Thus, we have recognized that a resentencing must proceed “as an entirely new proceeding,” id., and that a “resentencing should proceed de novo on all issues bearing on the proper sentence.” Teffeteller v. State, 495 So.2d 744, 745 (Fla.1986). In noncapital cases, too, we have concluded that “resentencing entitles the defendant to a de novo sentencing hearing with the full array of due process rights.” Trotter v. State, 825 So.2d 362, 367-68 (Fla.2002); see also Galindez v.

State, 955 So.2d 517, 525 (Fla.2007) (Cantero, J., specially concurring) (“We have consistently held that resentencing proceedings must be a ‘clean slate,’ meaning that the defendant’s vacated sentence becomes a ‘nullity’ and his ‘resentencing should proceed de novo on all issues bearing on the proper sentence.’ ” (citation omitted)); Walker, 988 So.2d at 8 (Altenbernd, J., concurring specially) (“Generally, courts have held that once a defendant successfully challenges his sentence on appeal and the cause is remanded for resentencing, the resentencing is a ‘de novo’ proceeding, at which either side may present evidence anew regarding the appropriate sentence.”).

The principle of de novo sentencing often benefits the defendant. See, e.g., Galindez, 955 So.2d at 525 (Cantero, J., specially concurring) (“In fact, because resentencing is de novo, the State was required to produce evidence on sentencing issues even if the State established the fact at the original sentencing.”); Tubwell v. State, 922 So.2d 378, 379 (Fla. 1st DCA 2006) (“As this resentencing proceeding was de novo, the state was not relieved of its burden to prove the prior offenses.” (citations omitted)); Rich v.

State, 814 So.2d 1207, 1208 (Fla. 4th DCA 2002) (holding that because resentencing following reversal is a new proceeding, the State must introduce evidence that the defendant qualifies for enhanced sentencing, even though such evidence was introduced in the previous sentencing hearing); Mills v. State, 724 So.2d 173, 174 (Fla. 4th DCA 1998) (holding that even though the defendant did not challenge his prior convictions at the original sentencing, law-of-the-case principles do not insulate the State from proving them at resentencing); Baldwin v.

State, 700 So.2d 95, 96 (Fla. 2d DCA 1997) (agreeing that because resentenc-ing is a new proceeding, the defendant may challenge the accuracy of prior convictions included on his scoresheet, even though he did not challenge them at the original sentencing). We have also recognized that because a resentencing is a new proceeding, the court is not limited by the evidence originally presented. See Lucas v. State, 841 So.2d 380, 387 (Fla.2003) (“[A] resentenc-ing court is not limited by evidence presented (or not presented) in ... the original ... sentencing phase.”); Mann v.

State, 453 So.2d 784, 786 (Fla.1984) (recognizing that where a remand directs a new sentencing proceeding, both sides may present additional evidence). Our decision in Mann illustrates this principle. At Mann’s original capital sentencing proceeding, the State introduced a Mississippi burglary conviction and presented testimony from the victim that Mann committed sexual battery. 453 So.2d at 785. Based on this evidence, the trial court found that the aggravating circumstance of previous conviction of a violent felony had been established. Id.

On appeal, we held that the trial court erroneously found this aggravating circumstance because the judgment of conviction did not disclose that it involved violence. Mann v. State, 420 So.2d 578, 581 (Fla.1982). We also held that the trial court erroneously found another aggravating circumstance and that we could not determine what the trial court found regarding mitigation. Id. We therefore vacated the death sentence and remanded for resentencing without a jury. Id.

On resentencing, in addition to the evidence presented at the first sentencing, the State introduced a copy of a Mississippi indictment charging Mann with “burglary both with the intent to commit unnatural carnal intercourse and that he did commit that crime.” 453 So.2d at 786. The trial court again found that the Mississippi conviction established the prior violent felony aggravator. Id. at 785-86.

On appeal from the resentencing, we rejected Mann’s argument that our previous opinion precluded the State from presenting additional evidence to establish the previous conviction: Our remand directed a new sentencing proceeding, not just a reweighing. In such a proceeding both sides may, if they choose, present additional evidence.

Moreover, as we stated previously: “We are not presented with a copy of the Mississippi charge document and, thus, cannot determine whether it alleged, and the jury convicted him of, a breaking with intent to commit a crime of violence.” The state remedied this omission on resentencing, and the proof — the indictment, the conviction, and the victim’s testimony' — establishes a prior conviction of a violent felony. Id. (citation omitted) (quoting Mann, 420 So.2d at 581). We affirmed the death sentence. Id.

As we did in Mann regarding evidence establishing an aggravating factor (a case with the ultimate stakes for the defendant), we conclude that because a resentencing is a new proceeding, the State may present additional evidence on remand to prove the defendant qualifies for habitual felony offender sentencing. Our decision furthers the purpose of the habitual felony offender statute. See Richardson, 915 So.2d at 88 (recognizing that the purpose of

section 775.084 “is to protect society from habitual criminals who persist in the commission of crime after having been theretofore convicted and punished for crimes previously committed”) (quoting Joyner v. State, 158 Fla. 806, 30 So.2d 304, 306 (1947)). B. Shull Does Not Apply Collins argues that our decision in Shull, 515 So.2d 748, applies. Shull held that when the reasons for imposing a sentence departing from the sentencing guidelines are reversed on appeal, trial judges cannot impose departure sentences on remand.

As we have since noted, however, implicit in our ruling in Shull “was our desire to preclude the possibility of a judge providing an after-the-fact justification for a previously imposed departure sentence.” Jones v. State, 559 So.2d 204, 206 (Fla.1990); see also Murray v. State, 616 So.2d 955, 956 (Fla.1998) (Barkett, C.J., specially concurring) (“The issue addressed in Shull was the danger of developing after-the-fact reasons for departure sentences.”). Such a danger does not exist here.

A judge imposing a habitual offender sentence need not justify the sentence with written reasons, except to find the predicate convictions for such a sentence. Therefore, as we now explain, Shull does not apply. Before Shull, we had decided Whitehead v. State, 498 So.2d 863 (Fla.1986). In that case, we considered the continued viability of the habitual felony offender statute in light of the subsequently enacted sentencing guidelines. We held that: (1) the guidelines applied to all felonies (except capital felonies and felonies committed before October 1988), and therefore

section 775.084 (the habitual offender statute) could not operate as an alternative to guidelines sentencing; and (2) the habitual offender statute could not be used as a reason for departing from the guidelines. See Whitehead, 498 So.2d at 865, 867. Subsequently, in Shull, the defendant was sentenced to a ten-year departure sentence based solely on the habitual offender statute. 515 So.2d at 749. The defendant, citing Whitehead, filed a motion for post-conviction relief alleging error in the use of his habitual offender status as a reason to depart. Shull v. State, 512 So.2d 1021, 1022 (Fla. 1st DCA 1987).

The trial court denied his motion. The district court reversed. On review of the defendant’s petition for habeas corpus, we held that the “trial court may not enunciate new reasons for a departure sentence after the reasons given for the original departure sentence have been reversed by the appellate court.” Shull, 515 So.2d at 750; see also Pope v. State, 561 So.2d 554, 556 (Fla.1990) (“[WJhen an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines.”); Patten v.

State, 531 So.2d 203, 205 (Fla. 2d DCA 1988) (interpreting Shull to prohibit enunciation of new reasons for a departure sentence after the original reasons given have been reversed on appeal). Collins argues that the situation here is similar to departure sentencing. As noted above, in those situations, when the reasons supporting a departure sentence are found invalid on appeal, the trial court may not impose a departure sentence on remand. This line of cases is distinguishable, however. To begin with, Shull no longer applies to habitual felony offender sentencing. The legislature has amended

section 775.084 to specify that a habitual felony offender sentence is not subject to the sentencing guidelines. It also amended

section 775.084 to delete the requirement that the trial court determine “if it is necessary for the protection of the public to sentence the defendant to an extended term.” See Ch. 88-131, § 6, at 708-09, Laws of Fla.; § 775.084(4)(h), Fla. Stat. (2001) (“A sentence imposed under this

section is not subject to s. 921.002.”). Habitual offender sentencing is now separate from both the sentencing guidelines and sentencing under the Criminal Punishment Code. See Bateman v. State, 566 So.2d 358, 359 (Fla. 4th DCA 1990) (recognizing that the amendment to

section 775.084 superseded Whitehead and “a habitual offender sentence in excess of the guidelines, even in the absence of stated reasons for departure, is now valid”); Owens v. State, 560 So.2d 1260, 1261 (Fla. 1st DCA 1990) (recognizing that Whitehead was decided before

section 775.084 was amended so that once the defendant meets the definition of a habitual felony offender, the trial court is no longer required to provide written reasons for imposing a sentence in excess of the guidelines). In addition, unlike departure sentencing, which -requires written reasons for departing from the guidelines,

section 775.084 now requires written reasons only when the court finds that a habitual felony offender sentence is “not necessary for the protection of the public.” § 775.084(3)(a)6., Fla. Stat. (2001); see Fla. R.Crim. P. 3.701(d)(11). Even if the statutes had not been amended, the underlying reason for our decision in Shull—preventing after-the-fact justifications for a previously imposed departure sentence — is not implicated here.

See Jones, 559 So.2d at 206 (recognizing that Shull does not apply to habitual offender sentencing and stating that “[t]his was not a case where the judge relied upon a reason for departure that was later declared invalid, but, rather, one in which the judge considered his sentence to be one to which the guidelines did not apply”). On remand for resentencing as a habitual felony offender, no danger exists that the judge will create after-the-fact justifications.

In contrast to the subjective (and therefore manipulable) permissible reasons for departing from the guidelines when we decided Whitehead and Shull, see Fla. R.Crim. P. 3.701(d)(11) (1985) (allowing departures where there are “clear and convincing reasons” to do so), the decision to sentence as a habitual felony offender must be based solely on objective, mostly documentary, evidence of the defendant’s prior felony convictions. See § 775.084(1)(a)-(d), Fla. Stat. (2001) (defining a habitual felony offender, habitual violent felony offender, three-time violent felony offender, and violent career criminal).

Therefore, the concerns Shull addressed do not apply in this context. C. Double Jeopardy Our decision does not implicate double jeopardy concerns either. We have noted that “[t]he guarantee against double jeopardy consists of three separate constitutional protections: ‘It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’ ” Lippman v. State, 633 So.2d 1061, 1064 (Fla.1994) (quoting North Carolina v.

Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989)). None of these protections is involved in a resentencing. In almost identical circumstances, the United States Supreme Court has held that allowing the introduction of additional evidence at resentencing does not implicate double jeopardy concerns. See Monge v. California, 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998).

In Monge, the State sought to sentence the defendant under California’s “three-strikes” law, another sentence enhancement statute based on prior convictions. As in this case, the State conceded that the evidence of the prior convictions was insufficient, but sought to prove the allegations on remand. Id. The Supreme Court held that the Double Jeopardy Clause does not preclude a second opportunity to prove that the defendant had a prior conviction that would trigger a sentence enhancement. Id. at 734, 118 S.Ct. 2246.

The Court distinguished between an acquittal and a sentence: We have held that where an appeals court overturns a conviction on the ground that the prosecution proffered insufficient evidence of guilt, that finding is comparable to an acquittal, and the Double Jeopardy Clause precludes a second trial. Where a similar failure of proof occurs in a sentencing proceeding, however, the analogy is inapt. The pronouncement of sentence simply does not “have the qualities of constitutional finality that attend an acquittal.” Id. at 729, 118 S.Ct. 2246 (citation omitted) (quoting United States v.

DiFrancesco, 449 U.S. 117, 134, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980)). Like the United States Supreme Court, we find that the Double Jeopardy Clause does not preclude granting the State a second opportunity to demonstrate that Collins meets the criteria for habitualization. A second attempt to prove the criteria for an enhanced sentence does not equate to “a second prosecution for the same offense after acquittal.” Lippman, 633 So.2d at 1064 (quoting Pearce, 395 U.S. at 717, 89 S.Ct. 2072).

We have held in other contexts that a resentencing following a reversal on a sentencing issue does not implicate double jeopardy concerns. See Trotter, 825 So.2d at 368 (holding that double jeopardy principles are not violated where the trial court did not impose a multiplier at the original sentencing but imposed a multiplier on remand); Harris v. State, 645 So.2d 386, 388 (Fla.1994) (holding that imposition of a habitual offender sentence on remand after the trial court’s pronouncement of a non-habitual sentence in the original proceeding does not violate double jeopardy); see also Walker, 33 Fla. L.

Weekly at D44, — So.2d at — (Altenbernd, J., concurring specially) (“There is no doubt that double jeopardy is not implicated in this case because Mr. Walker has successfully sought reversal of the sentence in this appeal.”). The same is true here. D. Due Process The final issue is whether granting the State a second opportunity to demonstrate that Collins meets the criteria for habitualization violates due process. We hold that it does not. Certainly, due process principles apply to a resentencing. See Griffin v.

State, 517 So.2d 669, 670 (Fla.1987) (“The pronouncement of sentence upon a criminal defendant is a critical stage of the proceedings to which all due process guarantees attach whether the sentence is the immediate result of adjudication of guilt or, as here, the sentence is the result of an order directing the trial court to resentence the defendant.”); State v.

Scott, 439 So.2d 219, 220 (Fla.1983) (“[O]nce the court has determined that the sentence was indeed illegal and the prisoner is entitled to a modification of the original sentence or the imposition of a new sentence, the full panoply of due process considerations attach.”). In Trotter, however, we explained that in resentencing proceedings, “[t]he due process inquiry ... is whether the new sentence ... constitutes a vindictive sentence.” 825 So.2d at 368 (citing Pearce, 395 U.S. at 725-26, 89 S.Ct. 2072).

We further Here, Collins was originally sentenced as a habitual felony offender and has yet to be resentenced (we stayed the district court’s mandate). As long as the sentence imposed following resentencing is not more severe, the presumption of vindictiveness does not arise. Trotter, 825 So.2d at 369; see also People v.

Barragan, 32 Cal.4th 236, 9 Cal.Rptr.3d 76, 83 P.3d 480, 486 (2004) (refusing to “use the Due Process Clause as a device for extending the double jeopardy protection to cases where it otherwise would not extend” and concluding that a retrial of a prior adjudication does not violate due process) (quoting Dowling v. United States, 493 U.S. 342, 354, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990)). III.

CONCLUSION For the reasons stated, we hold that when a habitual offender sentence is reversed because of insufficient evidence, on remand for resentencing the State may again attempt to prove that the defendant meets the criteria for such sentencing. We therefore approve the decision of the Second District reversing Collins’s sentence, but quash the decision to the extent it precludes the State from introducing additional evidence on remand. On that issue, we approve the conflicting decisions in Wilson, Cameron, Morss, Roberts, and Brown. It is so ordered. WELLS, PARIENTE, and BELL, JJ„ concur.

PARIENTE, J., concurs with an opinion. ANSTEAD, J., dissents with an opinion, in which LEWIS, C.J., and QUINCE, J., concur. QUINCE, J., dissents with an opinion, in which LEWIS, C.J., and ANSTEAD, J., concur. . That

section provides: "In order to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony.” (Emphasis added.) . Although the Second District stated the issue as whether the sentences were imposed "on the same date,” see Collins, 893 So.2d at 593, for purposes of

section 775.084(5), the relevant inquiry is whether the sentencing for the prior felonies occurred in the same proceeding. See State v. Richardson, 915 So.2d 86, 89 (Fla.2005) (quoting Bover v. State, 797 So.2d 1246, 1250 (Fla.2001)). Because the State has not raised this issue and it conceded at oral argument that the evidence below was insufficient, we do not address this issue. . Collins also certified conflict with Rhodes, 704 So.2d at 1083. The opinion in Rhodes, however, does not discuss whether the defendant objected to the sufficiency of the evidence.

If the defendant failed to object, the conflict could be resolved based on the same distinction the Second District drew in Collins. All the cases cited in the text involved defendants who objected at sentencing. . In Walker, all three members of the panel concurred in Judge Altenbernd's specially concurring opinion that, absent precedent in the Second District, he would follow the law from the First, Fourth, and Fifth Districts that this evidentiary error does not preclude the State from presenting new evidence on remand. Judge Altenbernd authored a similar opinion, joined by Judge Kelly, in Lloyd v.

State, 844 So.2d 713, 715 (Fla. 2d DCA 2003) (Altenbernd, C.J., concurring specially) (acknowledging the Second District precedent but arguing that "both sides to the controversy are simply entitled to a new sentencing hearing where the necessary evidence is presented and the correct law is applied”). Thus, it appears at least four judges in the Second District would agree with the First, Fourth, and Fifth Districts if not for Second District precedent. .

Although not relevant to the precedential value of our decision in Mann, we note that the Eleventh Circuit Court of Appeals later vacated Mann's sentence on other grounds. See Mann v. Dugger, 844 F.2d 1446, 1458-59 (11th Cir.1988) (en banc) (finding the jurors were misinformed as to the importance of their recommendation, contrary to Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)). The resentencing resulted in another death sentence, which we affirmed. See Mann v. State, 603 So.2d 1141, 1144 (Fla.1992). Mann v. Dugger was subsequently overruled. See Davis v.

Singletary, 119 F.3d 1471, 1482 (11th Cir.1997) (recognizing that references to and descriptions of the jury's verdict as "advisory,” as a "recommendation,” and of the judge as the "final sentencing authority” are permissible under Romano v. Oklahoma, 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994)).