ROBERT JAMES BRIM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Brim appealed his conviction and sentence from 1993. After this court affirmed but remanded for sentencing correction in 1995, the Florida Supreme Court partially disapproved the reasoning and ordered a limited evidentiary hearing on DNA population statistics. This court now reaffirms the conviction and reiterates the sentencing correction mandate.
The court affirms Mr. Brim's conviction in case number 91-14399 and remands for correction of the sentencing order to eliminate the habitual felony offender designation from the misdemeanor sentence, reiterating its earlier holding on this issue.
[1] A court may affirm a conviction while remanding for correction of a sentence.
[2] A prior appellate decision that is partially disapproved by a higher court does not necessarily affect all aspects of a judgment or sentence.
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Join FLexlaw to unlock all legal intelligence“Because this specific case should have been unaffected by the supreme court's decision and there exists some potential confusion about the status of the mandate in this case, we again affirm Mr. Brim's conviction in case number 91-14399.”
The court's primary holding that the conviction should be affirmed despite the intervening Supreme Court opinion.
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Join FLexlaw to unlock all legal intelligenceMr. Brim was convicted in case number 91-14399 in the trial court. In 1995, the Second District affirmed the conviction but remanded for correction of…
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PER CURIAM.
In 1993, Mr. Brim appealed his judgment and sentence in this case.1 His prior counsel filed an Anders2 brief. This appeal traveled with two companion cases in the Second District.3 In 1995, this court affirmed the conviction but remanded for correction of the sentence. See Brim v. State, 654 So. 2d 184 (Fla. 2d DCA 1995). The remainder of this court’s 1995 opinion addressed a DNA issue that is not relevant to this case.
Mr. Brim appealed this court’s decision in these three cases to the Florida Supreme Court, which docketed the three matters as a single case. The supreme court identified all three cases as case number 85,596. Ultimately the supreme court issued an opinion partially disapproving this court’s reasoning. The supreme court instructed this court to remand the matter to the trial court for a limited evidentiary hearing “intended to clarify the exact methods used by the State in calculating its population frequency statistics at the time of the plea and trial.” Brim v. State, 695 So. 2d 268, 275 n. 10 (Fla.1997). The supreme court’s opinion did not affect any aspect of Mr. Brim’s judgment or sentence in case number 91-14399. This court then issued an order withdrawing our prior mandate and substituting the supreme court’s opinion and judgment in its place. Thereafter the trial court conducted a limited evidentiary hearing and reaffirmed Mr. Brim’s convictions. He then appealed that order to this court.
Because this specific case should have been unaffected by the supreme court’s decision and there exists some potential confusion about the status of the mandate in this case, we again affirm Mr. Brim’s conviction in case number 91-14399. In the event the sentencing correction previously mandated never occurred, we restate our earlier holding on this sentencing issue and “remand for correction of the sentencing order in [this] case to eliminate the habitual felony offender designation from the misdemeanor sentence.” Brim, 654 So. 2d at 189.
We affirm Mr. Brim’s conviction in this case only, and remand for the correction of his sentence in accordance herewith. His other two convictions remain pending on appeal in this court as case number 2D97-4559.
ALTENBERND, A.C.J., and FULMER and SALCINES, JJ., Concur. . See Brim v. State, No. 2D93-864 (Fla. 2d DCA filed Mar. 8, 1993) (appealing State v. Brim, No. 91-14399 (Fla. 13th Cir.Ct.1993)).
. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Anders Briefs, 581 So. 2d 149 (Fla. 1991); State v. Davis, 290 So. 2d 30 (Fla.1974).
. See Brim v. State, No. 2D93-860 (Fla. 2d DCA filed Mar. 12, 1993) (appealing State v. Brim, No. 92-799 (Fla. 13th Cir.Cl.1993)); Brim v. State, No. 2D93-863 (Fla. 2d DCA filed Mar. 12, 1993) (appealing State v. Brim, No. 92-875 (Fla. 13th Cir.Ct.1993)).
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Citator
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Brim v. State, 779 So. 2d 427 (Fla. 2d DCA 2000)…ue. He received a fifteen-year sentence of imprisonment as a habitual offender, followed by fifteen years’ probation. During our deliberations in this case, we severed the appeal in case number 91-14399 and affirmed that sentence. See Brim v. State, 754 So. 2d 823 (Fla. 2d DCA 2000). Thus, Mr. Brim is currently serving his sentence in that case while these appellate proceedings remain pending. In case number 92-799, Mr. Brim entered a plea reserving the right to appeal the denial of his motion in limine, whi…1 / 2
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Brim v. State, 827 So. 2d 259 (Fla. 2d DCA 2002)…, Judge. The underlying issue involved in this appeal, whether certain DNA evidence met Frye1 standards, was first presented to this court in 1993 when Robert James Brim appealed his convictions in several cases as fully explained in Brim v. State, 754 So. 2d 823 (Fla. 2d DCA 2000). Since that time, this court, the supreme court, and the trial court have each grappled with unique considerations concerning the propriety and effect of DNA evidence admitted during Mr. Brim’s trial. Today we specifically address…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- In re App. Court Response to Anders Briefs, 581 So. 2d 149 (Fla. 1991)
- Brim v. State, 695 So. 2d 268 (Fla. 1997)
- State v. Cullen Davis, 290 So. 2d 30 (Fla. 1974)
- Brim v. State, 654 So. 2d 184 (Fla. 2d DCA 1995)