ARTHUR LEE ROSS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court's initial resentencing was a nullity because it lacked authority, and subsequent attempts to correct the error were also improper. The court must still ensure compliance with the original mandate.
[1] A trial court's initial resentencing is a nullity if it fails to comply with an appellate court's mandate and instead imposes a sentence not authorized by the mandate.
[2] Double jeopardy does not attach when a trial court attempts to correct an unauthorized resentencing by reinstating a prior valid sentence.
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Join FLexlaw to unlock all legal intelligenceFollowing a prior appeal, the trial court failed to comply with the appellate mandate, instead resentencing the defendant to a shorter term. The court…
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LETTS, Judge.
In Ross v. State, 426 So. 2d 1228 (Fla. 4th DCA 1983), we found no reversible error as to the sentence imposed except for:
1. Failure to make written findings pursuant to Section 39.111(6)(d), Florida Statutes (1981).
2. Failure to enter a written order justifying the retention of jurisdiction pursuant to Section 947.16(3)(a), Florida Statutes (1981).
Accordingly, another panel of this court remanded this cause for the purpose of complying with the above two numbered paragraphs. However, the trial court did not follow the mandate and instead resen-tenced the defendant to a significantly shorter term. It later realized its mistake and tried to comply with our original mandate by entering written findings and reinstating the original sentence.
The defendant takes great issue with the trial court’s attempts to comply with our mandate claiming double jeopardy attached when the trial court withdrew the resentencing and reinstated the original sentence. We reject that argument because the trial court had no authority to resen-tence the defendant in the first place under our original Ross1 mandate. Instead, it should have only carried out the terms of that pronouncement and the first resentencing was a nullity as was the second.
We are tempted to label as harmless error the later efforts to modify and then reinstate the original sentence, out of time as they were. However, the trial court has, so far as our record shows, still not entered a written order justifying the retention of jurisdiction. Thus, though we agree with the trial judge that all this is a waste of judicial labor, we must, at the insistence of the Public Defender, remand this case once more to dot the “i’s” and cross the “t’s.” Hopefully, that will be the end of the matter. REVERSED AND REMANDED.
HURLEY and DELL, JJ., concur. . This is not a matter under Florida Rule of Criminal Procedure 3.800(b) which permits a trial judge to modify or reduce a sentence upon the receipt of a mandate from ah appellate court because far more than 60 days had elapsed.