STATE OF FLORIDA, PETITIONER,
v.
JEFFREY ELY ROBERTS, RESPONDENT
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The Florida Supreme Court clarified its prior precedent in State v. McKinnon regarding the proper procedure for staying a mandate pending discretionary review. The Court held that parties may file motions to stay or recall a mandate in either the district court of appeal or the Supreme Court, contrary to a potential reading of McKinnon, and granted the State's motion to stay the First District's mandate pending the Court's consideration of whether to accept jurisdiction.
A party seeking to stay a mandate may file the motion in either the district court of appeal or the Florida Supreme Court. The pendency of a notice to invoke discretionary jurisdiction does not deprive the district court of appeal of jurisdiction to rule on a motion to stay or recall its mandate. The Court clarified that McKinnon did not hold that such motions must be filed exclusively in the Supreme Court.
[1] A district court of appeal retains jurisdiction to rule on a motion to stay or withdraw its mandate even after a notice to invoke discretionary jurisdiction has been file…
[2] A party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion,…
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Join FLexlaw to unlock all legal intelligence“While a motion for stay and to recall a mandate may be filed in this Court, it may also be filed in the district court of appeal. The fact that a notice to invoke the discretionary jurisdiction of this Court has already been filed does not deprive the district court of appeal of jurisdiction to rule upon the motion.”
Establishes that both courts have concurrent jurisdiction over motions to stay or recall mandates
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Join FLexlaw to unlock all legal intelligenceThe First District Court of Appeal reversed Roberts' conviction and remanded for a new trial on May 18, 1995, issuing its mandate on June 6, 1995. The…
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PER CURIAM.
On May 18, 1995, the First District Court of Appeal rendered its opinion reversing Roberts’ conviction and remanding for a new trial. The court issued its mandate on June 6, 1995. On June 16, 1995, the State timely filed a notice to invoke the discretionary jurisdiction of this Court predicated upon conflict of decisions. On June 20, 1995, the State filed in the First District Court of Appeal a motion to recall mandate. On July 10, 1995, the First District Court of Appeal denied the motion to recall mandate, specifically stating that pursuant to State v. McKinnon, 540 So. 2d 111 (Fla.1989), a party desiring stay of mandate during the pendency of a petition for review in this Court must apply to this Court for the stay. The State has now filed a motion with this Court seeking a stay and requiring the First District Court of Appeal to withdraw its mandate pending disposition of the notice to invoke the discretionary jurisdiction of this Court.
We have chosen to publish this order in order to clarify our opinion in McKinnon. Our opinion in McKinnon contained language indicating that a party desiring a stay of mandate during the pendency of a petition for review in this Court must apply to this Court for a stay. However, the issue in that case was not where the motion for stay should be filed. Rather, the holding in that case was that the pendency of a petition for review in this Court did not deprive the trial court of jurisdiction to resentence a defendant pursuant to the district court’s mandate which had reversed and remanded the case for resentencing.
While a motion for stay and to recall a mandate may be filed in this Court, it may also be filed in the district court of appeal. The fact that a notice to invoke the discretionary jurisdiction of this Court has already been filed does not deprive the district court of appeal of jurisdiction to rule upon the motion. This is explained in Florida Rule of Appellate Procedure 9.310(a), which reads as follows:
(a) Application. Except as provided by general law and in subdivision (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief. A stay pending review may be conditioned on the posting of a good and sufficient bond, other conditions, or both.
(Emphasis added.)
Generally speaking, this Court prefers that the motion for stay be filed in the district court of appeal because at that stage of the case the district court ordinarily will be better informed concerning the case and thereby better able to predict the likelihood of this Court’s accepting jurisdiction. Therefore, we recede from McKinnon to the extent that it suggests that the filing of a notice to invoke discretionary jurisdiction precludes the district court of appeal from entertaining a motion to stay or withdraw its mandate.
Because there is a reasonable possibility that this Court will accept jurisdiction in this case and perhaps obviate the necessity for a new trial, we hereby grant the State’s motion and direct the district court of appeal to withdraw its mandate pending consideration of the notice to invoke this Court’s discretionary jurisdiction.
GRIMES, C.J., and OVERTON, SHAW, KOGAN, HARDING, WELLS and ANSTEAD, JJ., concur.
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Bryant v. State, 744 So. 2d 1225 (Fla. 4th DCA 1999)…tate cannot use allegations of use of a firearm in another count of the information to support imposition of the mandatory minimum term on Count I. See State v. McKinnon, 540 So. 2d 111 (Fla.1989), receded from on other grounds by, State v. Roberts, 661 So. 2d 821 (Fla.1995); Helmick v. State, 569 So. 2d 869 (Fla. 2d DCA 1990). The state argues that the imposition of the mandatory minimum sentence is appropriate based on the supreme court’s holding in State v. Overfelt, 457 So. 2d 1385 (Fla.1984), and its pr…
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Thaddeus Simms v. State, 949 So. 2d 373 (Fla. 4th DCA 2007)…However, the language charging a firearm enhancement as to one count cannot be used to justify the application of the enhancement to a different count. State v. McKinnon, 540 So. 2d 111 (Fla.1989), receded from on other grounds by State v. Roberts, 661 So. 2d 821 (Fla.1995); Bryant v. State, 744 So. 2d 1225, 1226 (Fla. 4th DCA 1999). In response to this court’s order to show cause, the state properly concedes that because no language was included in count II of the amended information charging that Defendan…
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Mitchell v. State, 689 So. 2d 1118 (Fla. 3d DCA 1997)…special verdict form so indicating. State v. Overfelt, 457 So. 2d 1385, 1387 (Fla.1984)(emphasis added). The proper outcome in this case is suggested by State v. McKinnon, 540 So. 2d 111 (Fla.1989), receded from on other grounds, State v. Roberts, 661 So. 2d 821 (Fla.1995). McKinnon was charged with second degree murder and convicted of the lesser included offense of manslaughter. Despite McKinnon’s objections, the court enhanced the manslaughter conviction, a second degree felony, to a first degree felony…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Webster Fleming McKINNON, 540 So. 2d 111 (Fla. 1989)