JEROME BAILEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jerome Bailey appealed the trial court's denial of his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). The Fourth District affirmed the denial, finding the issue had been decided adversely to Bailey on prior occasions and was law of the case, though the court noted Bailey could raise a new recusal issue in a properly filed motion.
The trial court's denial of the motion to correct an illegal sentence was properly upheld as law of the case since the issue had been decided adversely to Bailey on prior appeal. The court noted that the new recusal issue could not be raised for the first time on appeal, but could be properly raised in a motion at the trial court level.
[1] A prior appellate decision affirming the denial of a motion on the merits establishes the law of the case for subsequent stages of the litigation.
[2] The law of the case doctrine requires that questions of law decided on appeal must govern the case through all subsequent stages.
Previewing 2 of 5 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“Because the denial of this issue — on the merits, the first time it was raised — was affirmed on appeal, the denial is the law of the case with respect to this issue.”
Establishes the law of the case doctrine barring reconsideration of issues already decided on prior appeal
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Join FLexlaw to unlock all legal intelligenceBailey filed a motion to correct an illegal sentence. The trial court denied the motion. Bailey had previously raised related issues in prior appeals …
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[*436] PER CURIAM.
We affirm the trial court’s denial of appellant’s motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a).
The issue presented in the motion has already been decided adversely to the appellant on numerous occasions. See Bailey v. State, 877 So. 2d 836, 838 (Fla. 4th DCA 2004); Bailey v. State, No. 4D05-2602 (Fla. 4th DCA Aug. 11, 2005) (dismissing petition for writ of habeas corpus as legally insufficient); Bailey v. State, 933 So. 2d 535 (Fla. 4th DCA 2006) (Table).
Because the denial of this issue — on the merits, the first time it was raised — was affirmed on appeal, the denial is the law of the case with respect to this issue. See State v. McBride, 848 So. 2d 287, 289-90 (Fla.2003) (noting that law of the case doctrine requires that questions of law decided on appeal must govern the case through all subsequent stages).
Furthermore, there is no manifest injustice in the failure to correct an illegal sentence if the defendant is serving concurrent sentences of the same length, or if a correction has the potential of resulting in an increased term. Id. at 292. Both of these exceptions would apply to appellant.
However, in his initial brief filed in the instant appeal, appellant raises a new issue which was not raised in the instant motion, is not mentioned in the summary record provided to this court in connection with this appeal, and which he does not indicate he ever raised before at the trial court level. He claims that the judge who ruled on his postconviction motions had recused himself from his initial case, and thus orders entered by the recused judge were void. If his allegations are true, there is some authority to support his position. See Goolsby v. State, 914 So. 2d 494 (Fla. 5th DCA 2005). This issue cannot be raised for the first time on appeal. We affirm but without prejudice to raising this issue in a properly filed motion.
WARNER, POLEN and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Antoine L. McBRIDE, 848 So. 2d 287 (Fla. 2003)
- Emmet Black v. State, 914 So. 2d 494 (Fla. 4th DCA 2005)
- Goolsby v. State, 914 So. 2d 494 (Fla. 5th DCA 2005)
- Bailey v. State, 877 So. 2d 836 (Fla. 4th DCA 2004)