PHILLIP A. GOOLSBY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Goolsby sought rehearing of an appeal concerning postconviction relief. The court granted rehearing, withdrew its prior affirmance, and reversed the trial court's denial of postconviction relief, finding that the trial court erred by considering transcripts from a recused judge's hearing when conducting de novo review instead of either summarily denying the motion or conducting a new evidentiary hearing.
The trial court erred by considering the transcripts from the recused judge's hearing. When an appellate court orders de novo review by a new judge, that judge should either summarily deny the motion with appropriate record references or conduct a new evidentiary hearing, not rely on prior transcripts, as doing so denies the court the opportunity to view witnesses and weigh credibility.
[1] A court may withdraw a mandate issued during a prior term if a timely motion for rehearing was filed but not considered.
[2] When an appellate court orders a de novo review of a postconviction relief motion by a new judge, the new judge must either summarily deny the motion with record referenc…
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Join FLexlaw to unlock all legal intelligence“When we ordered de novo review by a new judge, we contemplated that Goolsby's postconviction motion would either be summarily denied with appropriate references to the record and attachments, or that a new hearing would be conducted.”
Establishes the court's understanding of what de novo review entails and the two proper procedures available to the trial court.
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Join FLexlaw to unlock all legal intelligenceGoolsby's postconviction relief motion was initially heard by a judge who was later recused. On remand for de novo review by a different judge, the ne…
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PER CURIAM.
We grant Mr. Goolsby’s motion for rehearing, and withdraw our earlier per cu-riam affirmance and the mandate.1 In place of our earlier opinion, we substitute the following:
In Goolsby v. State, 914 So. 2d 494 (Fla. 5th DCA 2005), we directed the circuit court to reconsider de novo Goolsby’s motion for postconviction relief, as the evidentiary hearing had been conducted by a recused judge. On remand, the matter was assigned to a different judge who considered the court file, along with a transcript of the hearing conducted by the disqualified judge. Goolsby’s postconviction motion was then denied. On appeal, Goolsby contends that it was error for the court to consider those transcripts. We agree. When we ordered de novo review by a new judge, we contemplated that Goolsby’s postconviction motion would either be summarily denied with appropriate references to the record and attachments, or that a new hearing would be conducted. The procedure utilized by the trial court denied it the opportunity to view the witnesses and weigh their credibility.
Accordingly, we reverse the order denying postconviction relief and remand for reconsideration. On remand, the trial court shall either summarily deny the motion with appropriate attachments and references to the record, or conduct a new evidentiary hearing on Goolsby’s meritorious claims. If a hearing is conducted, the court shall not consider, except for impeachment or for any other lawful purpose, the earlier postconviction hearing transcripts. REHEARING GRANTED; REVERSED AND REMANDED.
THOMPSON, ORFINGER and EVANDER, JJ., concur. . The mandate in this matter was issued during an earlier term of court although the time for moving for rehearing had not expired. While the general rule is that the mandate may be withdrawn only during the term of court in which it was issued, see State Farm Mut. Auto. Ins. Co. v. Judges of the Dist. Court of Appeal, Fifth Dist., 405 So. 2d 980 (Fla.1981), this Court has recognized a narrow exception for circumstances like those in this case. For example, in Plucinik v. State, 885 So. 2d 478 (Fla. 5th DCA 2004), we held that when a mandate was improvidently issued on the erroneous conclusion that no timely motion for rehearing had been filed, it could be withdrawn even though the term of court had already expired. See also Zielke v. State, 839 So. 2d 911 (Fla. 5th DCA 2003).
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Citator
Cited By
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Berube v. State, 33 So. 3d 102 (Fla. 2d DCA 2010)…conduct de novo hearing on motions to suppress) (quoting Beattie v. Beattie, 536 So. 2d 1078, 1079 (Fla. 4th DCA 1988)). In a similar case, the Fifth District found it necessary to reverse a second denial of postconviction relief. Goolsby v. State, 948 So. 2d 965, 966 (Fla. 5th DCA 2007) (explaining that the successor judge should have either summarily denied the motion, with supporting record attachments, or conducted a new evidentiary hearing). Moreover, even if it had been proper for the successor judge…
Authorities Cited
- State Farm Mut. Auto. Ins. Co. v. Judges OF the Dist. Court OF Appeal, 405 So. 2d 980 (Fla. 1981)
- Emmet Black v. State, 914 So. 2d 494 (Fla. 4th DCA 2005)
- Goolsby v. State, 914 So. 2d 494 (Fla. 5th DCA 2005)
- Zielke v. State, 839 So. 2d 911 (Fla. 5th DCA 2003)
- Plucinik v. State, 885 So. 2d 478 (Fla. 5th DCA 2004)