STATE
v.
EFREN YERO
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A trial court's order vacating a sentence and directing resentencing pursuant to an appellate mandate is not an appealable order under section 924.07(1) of the Florida Statutes or Florida Rule of Appellate Procedure 9.140(c)(1).
[1] An order vacating a sentence and directing resentencing, entered by a trial court pursuant to an appellate mandate, is not an appealable order under section 924.07(1) of…
Previewing 1 of 1 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“The Florida Legislature has expressly and clearly delineated the parameters of this Court's jurisdiction to hear appeals brought by the State; we have jurisdiction to review only those orders enumerated in section 924.07(1) and rule 9.140(c)(1).”
Explaining why the court declined to assert jurisdiction despite the State's argument that the motion to dismiss should be treated as a motion to enforce the mandate.
The State appealed a January 30, 2019 order vacating Efren Yero's 155-year sentence and directing resentencing, which the trial court had entered purs…
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Third District Court of Appeal
State of Florida
Opinion filed March 11, 2020. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D19-192 Lower Tribunal No. 79-4932
________________
The State of Florida,
Appellant,
vs.
Efren Yero,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Alberto Milian, Judge. Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney General, for appellant. Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellee. Before SCALES, HENDON and LOBREE, JJ.
ON MOTION TO DISMISS APPEAL
SCALES, J.
The State seeks to appeal the trial court’s January 30, 2019 order that, pursuant to this Court’s mandate,1 vacates Efren Yero’s sentence and directs that Yero be resentenced at a future sentencing hearing. Yero has moved to dismiss the instant appeal, claiming that the January 30, 2019 order is not one of the enumerated appealable orders set forth in section 924.07(1) of the Florida Statutes (2019) and
Florida Rule of Appellate Procedure 9.140(c)(1). We agree with Yero and,
therefore, dismiss this appeal for lack of jurisdiction.
The State does not argue that the order falls into any category of appeals authorized by section 924.07(1) or rule 9.140(c)(1). Instead, the State suggests that,
in order to assert jurisdiction over this otherwise non-appealable order, we should reach the merits of the State’s appeal by treating Yero’s motion to dismiss the appeal as a motion to enforce this Court’s mandate, and deny same. The State, however,
cites no authority to support this creative proposition; nor is the State’s position supported by the record. Indeed, by entering the January 30, 2019 order the trial court has already taken steps – entirely consistent with this Court’s mandate in Yero
I – to enforce the mandate by vacating Yero’s sentence and scheduling a resentencing hearing. It is the State, not Yero, that has prematurely sought affirmative relief from this Court before a final sentencing order could be entered below.
We decline the State’s invitation to assert our appellate jurisdiction when none exists. The Florida Legislature has expressly and clearly delineated the parameters of this Court’s jurisdiction to hear appeals brought by the State; we have jurisdiction to review only those orders enumerated in section 924.07(1) and rule 9.140(c)(1).
See State v. Lundy, 233 So. 3d 1252, 1253 (Fla. 3d DCA 2017). As the State all but concedes that the challenged order is not in that schedule, we grant Yero’s motion to dismiss the instant appeal for lack of jurisdiction without prejudice to either party filing a timely notice of appeal after a final, appealable sentencing order has been entered by the trial court.
Appeal dismissed.
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Cited By
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State v. Efren Yero, 44 Fla. L. Weekly S125 (Fla. 3d DCA 2021)
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State v. Calix, 271 So. 3d 1236 (Fla. 3d DCA 2019)
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Reid v. State (Fla. 3d DCA 2019)
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Atwell v. State, 197 So. 3d 1040 (Fla. 2016)
- Franklin v. State, 258 So. 3d 1239 (Fla. 2018)
- State v. Efren Yero, 44 Fla. L. Weekly S125 (Fla. 3d DCA 2021)
- Carter v. State, 215 So. 3d 125 (Fla. 3d DCA 2017)
- State v. Major Lundy, 233 So. 3d 1252 (Fla. 3d DCA 2017)
- Efren Yero v. State, 217 So. 3d 150 (Fla. 3d DCA 2017)