DENNIS RAULERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant's conviction was affirmed by one panel of the appellate court, but a co-defendant's nearly identical conviction was reversed by a different panel on the same legal issue due to court administrative error. The court granted the defendant's petition for habeas corpus and vacated his conviction to remedy the inconsistent treatment.
The court granted Mr. Raulerson's petition for habeas corpus and vacated his conviction and sentence. Although the motion to recall the mandate could not be granted because it was filed after the court term ended, the court treated the motion as a petition for habeas corpus, which is the proper procedure for seeking relief in such circumstances of conflicting appellate decisions.
[1] An appellate court may treat a motion to recall a mandate as a petition for writ of habeas corpus when the motion is filed outside the term of court in which the original…
[2] A petition for writ of habeas corpus is the proper procedural vehicle for a criminal defendant to seek relief from an appellate court's conflicting decisions concerning i…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“As a result, one panel of this court affirmed Mr. Raulerson's conviction without opinion...Several months later, a different panel decided the identical issue, whether there was probable cause for a search, in favor of Mrs. Raulerson and reversed her conviction.”
Establishes the conflicting appellate decisions that created the inequitable treatment of co-defendants.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDennis Raulerson and his co-defendant Mrs. Raulerson were convicted in criminal cases raising identical issues regarding probable cause for a search. …
The full statement of facts, procedural history, and disposition for this case are member content.
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KLEIN, J.
Although this court has procedures in place to make sure that codefendants in criminal cases raising identical issues are treated consistently, our system did not work in this case because of human error in this court. As a result, one panel of this court affirmed Mr. Raulerson’s conviction without opinion. Raulerson v. State, 711 So. 2d 557 (Fla. 4th DCA 1998). Several months later, a different panel decided the identical issue, whether there was probable cause for a search, in favor of Mrs. Raulerson and reversed her conviction. Raulerson v. State, 714 So. 2d 536 (Fla. 4th DCA 1998).1
After our opinion in Mrs. Raulerson’s case was published, Mr. Raulerson filed a motion to recall his mandate citing Romero v. State, 637 So. 2d 7 (Fla. 4th DCA 1994), in which we granted relief to a codefendant in a criminal case under similar circumstances. Upon learning for the first time that there was a direct conflict between these two cases, we withdrew the mandate in Mrs. Raulerson’s case in order to resolve the conflict. After a discussion of the merits at an en bane conference of this court, we are now persuaded that the opinion in Mrs. Raulerson’s case was correct and that Mr. Raulerson’s conviction should not have been affirmed.
In Romero, we concluded that the proper method for seeking relief by a person in Mr. Raulerson’s situation was by petition for writ of habeas corpus in the appellate court. We reasoned in Romero that only the appellate court could resolve the problem created by its conflicting decisions, making a motion for post-conviction relief under rule 3.850(h), which must be filed in the trial court, inadequate.
In the present case, Mr. Raulerson has filed a motion to recall this court’s mandate. That procedure would have been ap- propriate if we had still been in the same term of court in which Mr. Raulerson’s conviction had been affirmed. His motion was not filed until August 24, 1998, and our term of court ended on the second Tuesday in July, 1998. § 35.10, Florida Statutes. We do not, therefore, have authority to recall the mandate. See State Farm Mut. Auto. Ins. Co. v. Judges of Dist. Court of Appeal, Fifth Dist., 405 So. 2d 980 (Fla.1981), and Joseph v. State, 447 So. 2d 243 (Fla. 3d DCA 1983)(granting relief to a defendant in circumstances similar to Mr. Raulerson by directing the trial court to vacate conviction under rule 3.850).
We therefore treat Mr. Raulerson’s motion to recall mandate as a petition for habeas corpus2, grant the petition, and vacate his conviction and sentence.
WARNER, J., concurs.
SHAHOOD, J., dissents with opinion.
. Judge Shahood, who is now on the panel in this case, was not on the original panel which affirmed Mr. Raulerson’s conviction. Judge Sha-hood was assigned by our blind selection system to replace an original panel member who re-cused because of events occurring after our decision in Mr. Raulerson’s case became final.
. The motion to recall mandate was filed in case number 97-2453. "Upon our treatment of the motion as a petition for habeas corpus, we hereby assign a new case number, 99-0002.
SHAHOOD, J.,
dissenting.
I dissent for the same reasons that I dissented to reversal of Mrs. Raulerson’s conviction.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State Farm Mut. Auto. Ins. Co. v. Judges OF the Dist. Court OF Appeal, 405 So. 2d 980 (Fla. 1981)
- Joseph v. State, 447 So. 2d 243 (Fla. 3d DCA 1983)
- Raulerson v. State, 714 So. 2d 536 (Fla. 4th DCA 1998)
- Romero v. State, 637 So. 2d 7 (Fla. 4th DCA 1994)