JEROME ALLEN
v.
STATE OF FLORIDA
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A trial court is not bound to enforce an appellate mandate when intervening decisions from higher courts render the mandate's legal basis obsolete or contrary to current law.
[1] An appellate mandate requiring resentencing is not binding on a trial court when intervening decisions from higher courts establish legal authority contrary to the origin…
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Join FLexlaw to unlock all legal intelligence“there should be exception to general rule binding parties to law of case when intervening decision by higher court is contrary to decision reached on former appeal, rendering correction of error unnecessary by appeal to higher court”
Court citing Marshall v. State for the principle that intervening higher court authority can override prior appellate mandates
Jerome Allen appealed his sentence imposed on remand from a prior appeal (case 5D13-1957). The circuit court had resentenced Allen following the earli…
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JEROME ALLEN,
Appellant,
v. Case No. 5D19-1580
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed August 7, 2020
Appeal from the Circuit Court for Brevard County, Kelly J. McKibben, Judge.
James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
SASSO, J.
Jerome Allen appeals the sentence imposed by the circuit court on remand from an earlier appeal to this Court, case number 5D13-1957. We sua sponte treat this appeal as a motion to enforce. See Ramsay v. State, 291 So. 3d 963, 965 (Fla. 4th DCA 2020) (noting disparate treatment of appeals challenging lower tribunal’s actions effectuating
2 mandates and concluding appeal should be treated as motion to enforce); Hankerson v. State, 897 So. 2d 555 (Fla. 5th DCA 2005) (treating petition for writ of mandamus as motion to enforce mandate). In so considering, we deny the motion. See Rembert v. State, 45 Fla. L. Weekly D1670 (Fla. 1st DCA July 13, 2020) (affirming trial court order declining to follow appellate mandate that required resentencing under Atwell v. State, 197 So. 3d 1040 (Fla. 2016), due to intervening authority of State v. Michel, 257 So. 3d 3 (Fla. 2018), and Franklin v. State, 258 So. 3d 1239 (Fla. 2018)); Marshall v. State, 44 Fla. L. Weekly D2561 (Fla. 2d DCA Oct. 18, 2019) (noting there should be exception to general rule binding parties to law of case when intervening decision by higher court is contrary to decision reached on former appeal, rendering correction of error unnecessary by appeal to higher court).
MOTION TO ENFORCE ORDER DENIED.
LAMBERT and TRAVER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Budry Michel, 257 So. 3d 3 (Fla. 2018)
- Franklin v. State, 258 So. 3d 1239 (Fla. 2018)
- Hankerson v. State, 897 So. 2d 555 (Fla. 5th DCA 2005)
- Ramsay v. State, 291 So. 3d 963 (Fla. 4th DCA 2020)