GREGORY S. CURRY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Gregory Curry appeals a trial court's denial of his Rule 3.850 postconviction motion for ineffective assistance of counsel, claiming the trial court failed to comply with an appellate mandate requiring reconsideration of his motion. The court denies Curry's motion to enforce the mandate, finding the trial court properly complied by reconsidering and denying the motion with supporting reasoning and record excerpts.
The trial court properly complied with the mandate by reconsidering Curry's motion, providing reasoning, and attaching record excerpts showing Curry was not entitled to relief. The trial court was not required to provide any particular relief, and Curry's repeated assertions of non-compliance are without merit.
[1] A trial court must comply with an appellate court's mandate and cannot alter or evade it without permission.
[2] When an appellate court reverses and remands for further proceedings, the trial court must rule on the motion, provide its reasoning, and attach record excerpts that conc…
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Join FLexlaw to unlock all legal intelligence“It is well settled that a 'trial court is without authority to alter or evade the mandate of an appellate court absent permission to do so.'”
Establishes the fundamental principle that trial courts must comply with appellate mandates and cannot evade them
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Join FLexlaw to unlock all legal intelligenceCurry was convicted in 1993 of armed robbery and burglary of an occupied conveyance with a firearm, and sentenced as a habitual violent offender to 27…
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On Motion to Enforce Mandate
Gregory Curry (“Curry”) requests that this Court enforce the mandate issued in Curry v. State, 994 So.2d 1109 (Fla. 3d DCA 2007). For the following reasons, we deny Curry’s motion.
On January 22, 1993, after a jury trial, Curry was convicted of armed robbery, in violation of section 812.13, Florida Statutes (Supp. 1992), and burglary of an occupied conveyance with a firearm, in violation of section 810.02, Florida Statutes (Supp. 1992). Curry was sentenced as a habitual violent offender to a term of twenty-seven years with a minimum mandatory of ten years.
After numerous unsuccessful post-conviction motions, petitions and appeals, Curry filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of counsel. On October 23, 2006, the trial court summarily denied Curry’s motion. Curry then filed a motion for rehearing, which was also denied by the trial court. Because the postconviction record failed to make the required showing that Curry conclusively was not entitled to the relief sought, this Court reversed the trial court’s denial and remanded for further proceedings. Curry, 994 So.2d at 1110.
On April 23, 2007, this Court issued its mandate commanding the trial court to comply with its opinion. On May 31, 2007, Curry filed a motion to enforce the Court’s mandate. The motion to enforce mandate was denied as moot based on the State’s report that the trial court had issued an order summarily denying Curry’s motion for postconviction relief on June 8, 2007. The trial court set forth its reasoning for the denial and cited to portions of the record, which were attached to the order as part of the State’s response. The court determined that the record conclusively established that Curry was not entitled to relief.1 On July 25, 2007, Curry appealed the order. On April 16, 2008, this Court *935affirmed the June 8, 2007, order. Curry v. State, 980 So.2d 503 (Fla. 3d DCA 2008) (table). On motions for rehearing, Curry argued that the trial court did not comply with the mandate issued in case number 3D07-22. The motions were denied on August 12, 2008, and October 8, 2008.
On October 16, 2008, Curry filed a motion to hear, review and rule on his second motion to enforce mandate in case number 3D07-22. On March 22, 2009, he filed a motion to enforce “appropriate relief,” and on June 15, 2009, he filed a “third motion to enforce mandate.”2 In the motions, Curry again argues that the trial court did not afford him the “appropriate relief’ in accordance with this Court’s mandate in Curry, 994 So.2d at 1110. This argument is without merit as the trial court on remand properly reconsidered Curry’s motion in accordance with the mandate.
“It is well settled that a ‘trial court is without authority to alter or evade the mandate of an appellate court absent permission to do so.’ ” Vega v. McDonough, 956 So.2d 1205, 1206 (Fla. 1st DCA 2007) (quoting Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Fin. Corp., 328 So.2d 825, 827 (Fla.1975)). In Curry, 994 So.2d at 1110, this Court reversed and remanded for further proceedings, stating:
Because the record now before us fails to make the required showing, we reverse the order and remand for an evi-dentiary hearing or other appropriate relief. If the trial court again enters an order sum,manly denying the postcon-viction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.
(Emphasis added). In denying the motion, the trial court did not “evade” this Court’s mandate. As directed, the trial court ruled on Curry’s motion, setting forth its rationale and attaching portions of the record it determined conclusively showed that Curry was not entitled to any relief. On appeal, this Court affirmed the order and denied rehearing, apparently holding that the record conclusively refuted Curry’s allegations. Contrary to Curry’s repeated assertions, and in accordance with this Court’s prior rulings, the trial court was not compelled to provide him any . particular relief. Accordingly, we deny the motion to enforce mandate.
Since Curry’s convictions and sentence, in case number 91-33233B, were affirmed in 1993, Curry v. State, 627 So.2d 603 (Fla. 3d DCA 1993) (table), he has filed a multitude of unsuccessful pro se appeals and petitions attacking the convictions or sentence with this Court.3 In the latest *936filings with this Court, Curry argues that he has not been afforded the mandated relief in case number 3D07-22, despite this Court’s ruling to the contrary in affirming the order issued on remand and denying two rehearing motions. As this Court stated in Lopez v. State, 987 So.2d 750, 752-53 (Fla. 3d DCA 2008):
While we recognize that defendants must be provided with a full panoply of procedural vehicles with which to challenge the lawfulness of their incarcerations, see State v. Spencer, 751 So.2d 47, 48 (Fla.1999), we find that it is an abuse of process to file successive motions rearguing the same issues which have been heard, considered, and rejected. Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995).
Accordingly, Curry is hereby ordered to show good cause within thirty (30) days why he should not be prohibited from filing further pro se pleadings with this Court pertaining to case number 91-33233B.
Motion to enforce is denied, and order to show cause issued.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Russell v. McQUEEN, 115 So. 3d 1084 (Fla. 5th DCA 2013)….1975); O.P. Corp. v. Vill. of N. Palm Beach, 302 So. 2d 130 (Fla.1974); Cone v. Cone, 68 So. 2d 886 (Fla.1953); Baskin v. Klemm, 118 Fla. 657, 160 So. 509 (1935); State ex rel. Dowling Co. v. Parks, 99 Fla. 1264, 128 So. 837 (1930); Curry v. State, 16 So. 3d 933 (Fla. 3d DCA 2009); Robinson v. Weiland, 988 So. 2d 1110 (Fla. 5th DCA 2008); Formor v. State, 923 So. 2d 563 (Fla. 5th DCA 2006); Mendelson v. Mendelson, 341 So. 2d 811 (Fla. 2d DCA 1977); City of Miami Beach v. Arthree, Inc., 300 So. 2d 65 (Fla. 3…
Authorities Cited (13 total)
- State v. Spencer, 751 So. 2d 47 (Fla. 1999)
- Isley v. State, 652 So. 2d 409 (Fla. 5th DCA 1995)
- Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Fin. Corp., 328 So. 2d 825 (Fla. 1975)
- Curry v. State, 955 So. 2d 579 (Fla. 3d DCA 2007)
- Vega v. McDONOUGH, 956 So. 2d 1205 (Fla. 1st DCA 2007)
- Curry v. State, 627 So. 2d 603 (Fla. 3d DCA 1993)
- Curry v. State, 898 So. 2d 1212 (Fla. 3d DCA 2005)
- Curry v. State, 913 So. 2d 736 (Fla. 3d DCA 2005)
- Corner v. State, 913 So. 2d 736 (Fla. 3d DCA 2005)
- Watkins v. Molina, 987 So. 2d 750 (Fla. 3d DCA 2008)