HORACE HANKERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court granted Hankerson's motion to enforce mandate, directing the circuit court to correct its amended order to reference only the proper case number and address the sentencing guidelines claim rather than the violent career criminal issue, and potentially conduct a new hearing if unable to refute his constitutional challenge.
The circuit court must correct its amended order to reference only case no. 97-387, address the sentencing guidelines claim from the prior appeal, and conduct a new hearing and resentencing if unable to conclusively refute Hankerson's claim that he was sentenced under unconstitutional 1995 sentencing guidelines.
[1] When a circuit court issues an amended order in response to an appellate mandate, it must reference only the correct case number and address the specific legal issue iden…
[2] A sentencing transcript that does not clearly establish adjudication as a habitual violent felony offender does not conclusively refute a defendant's claim of unconstitut…
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Join FLexlaw to unlock all legal intelligenceHankerson filed a petition for writ of mandamus on January 13, 2005, challenging the circuit court's amended order issued in response to a prior manda…
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PER CURIAM.
ON MOTION TO ENFORCE MANDATE
Horace Hankerson filed a petition for writ of mandamus on January 13, 2005, which we treat as a motion to enforce the mandate issued in Hankerson v. State, 864 So. 2d 574 (Fla. 5th DCA 2004). We recognize that the circuit court attempted to comply with our mandate by issuing an amended order, but the same was directed to the wrong case. Specifically, the amended order should have only referenced case no. 97-387. Accordingly, we grant the motion to enforce mandate, and direct the circuit court to only reference case no. 97-387 and to follow the instructions in Hankerson. If an amended order is entered, it should address the sentencing guidelines claim raised in that appeal, not the violent career criminal issue that is the subject of a different appeal. We also bring to the circuit court’s attention that the attachment to the amended order that was directed to the wrong case does not appear to conclusively refute Hankerson’s claim .that he was sentenced under the unconstitutional 1995 sentencing guidelines. The attached sentencing transcript does not clearly establish that Hankerson was adjudicated an habitual violent felony offender, and as noted in our earlier opinion, none of the habitual offender provisions in the written sentence were checked. To comply with the mandate, the circuit court may find it necessary to conduct a new hearing and resentence Hankerson if it is unable to conclusively refute his allegations. It is so ordered. MOTION TO ENFORCE MANDATE GRANTED.
PETERSON, GRIFFIN and PALMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ramsay v. State, 291 So. 3d 963 (Fla. 4th DCA 2020)…(Fla. 4th DCA 1984) (citing Stuart v. Hertz Corp., 381 So. 2d 1161, 1163 (Fla. 4th DCA 1980)). At the same time, two courts have treated a petition for writ of mandamus as a motion to enforce mandate in the original appeal. Hankerson v. State, 897 So. 2d 555, 555 (Fla. 5th DCA 2005); Basic Energy Corp. v. Hamilton Cty., 667 So. 2d 249, 250 n.1 (Fla. 1st DCA 1995). In other cases, a new appeal is treated as a motion to enforce mandate in the original case. Elder v. State, 268 So. 3d 995, 996 (Fl…
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Bonifay v. State (Fla. 1st DCA 2020)…ee Marshall v. State, 44 Fla. L. Weekly D2561 (Fla. 2d DCA Oct. 18, 2019) (Order on Motion to Enforce Mandate) (denying defendant’s motion to enforce mandate on the basis that its reasoning was “superseded by the supreme court” in Franklin v. State, 258 So. 3d 1239, 1241 (Fla. 2018), and acknowledging that “an intervening decision by a higher court contrary to the decision reached on the former appeal” was a “clear example” of an exception to the general rule binding the parties to the law of the case and dema…
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Woods v. State, 45 Fla. L. Weekly D1670 (Fla. 1st DCA 2020)…AFFIRMED. See generally Rembert v. State, Case No. 1D19- 2499, 45 Fla. L. Weekly D1670, 2020 WL 3957867 (Fla. 1st DCA July 13, 2020) (affirming trial court’s denial of resentencing on remand notwithstanding earlier mandate based on Atwell v. State, 197 So. 3d 1040 (Fla. 2016), because Atwell had been overruled “by clear intervening precedent” in Franklin v. State, 258 So. 3d 1239 (Fla. 2018), before defendant was resentenced; approving “a trial court’s ability to disregard a mandate . . . when it is undoubted…1 / 2
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fritzner v. State, 864 So. 2d 574 (Fla. 5th DCA 2004)
- Hankerson v. State, 864 So. 2d 574 (Fla. 5th DCA 2004)