STATE OF FLORIDA, APPELLANT,
v.
DONALD ERWIN BIESENDORFER, APPELLEE
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The State appeals the trial court's order vacating Biesendorfer's conviction for receiving stolen property on remand from a prior appeal. The appellate court reverses, holding that issues decided on direct appeal are res judicata and cannot be reconsidered through post-conviction motions.
The trial court may not vacate the judgment and sentence based on issues that were decided on direct appeal. Issues actually decided on appeal are res judicata and cannot be the subject of further review through post-conviction motions under CrPR 1.850.
[1] An issue decided on direct appeal is res judicata and cannot be the subject of further review under a motion to vacate judgment and sentence.
[2] A trial court is bound by the appellate court's ruling on an issue that was affirmed on direct appeal.
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Join FLexlaw to unlock all legal intelligence“The issue of the sufficiency of the jury verdict has been affirmed on direct appeal. This affirmance, upon remand, is binding upon the trial court.”
Establishes that appellate affirmances are binding on remand and cannot be revisited by the trial court
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Join FLexlaw to unlock all legal intelligenceBiesendorfer was convicted of receiving stolen property under Florida law. On his first appeal, this court affirmed the jury verdict but vacated the j…
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This is the second appeal to this Court growing out of appellee Biesendorfer’s conviction under F.S.1967, 811.16, F.S.A., of the crime of receiving stolen property.
Biesendorfer v. State (Fla.App. 1969), 227 So.2d 322, was the first appeal. That appeal, brought by Biesendorfer, sought to have vacated and set aside the jury verdict, judgment of conviction and sentence. This court affirmed the jury verdict but did, however, vacate the judgment and sentence, reversed and remanded the cause to the trial court with directions that a proper and lawful judgment be entered and that Biesen-dorfer be justly sentenced.
The trial court, upon remand, on July 9, 1970, adjudged Biesendorfer guilty as charged and imposed a sentence of five years. Contemporaneous with the filing of the trial court’s written judgment, defendant filed a motion under CrPR 1.850, 33 F.S.A. to vacate and set aside judgment of conviction and sentence. Defendant’s motion to vacate was granted by order dated July 20, 1970, and judgment of conviction and sentence were set aside. The funda*148ment of the order of July 20, 1970, is that the form of jury verdict finding defendant guilty is so defective that it will not sustain a judgment of guilt.
It is from this order of July 20, 1970, that the State appeals. We reverse.
The point relied upon by the trial court to vacate the judgment and sentence was squarely presented in the first appeal, Bie-sendorfer v. State, supra. It was decided adverse to Biesendorfer’s contention in the following language:
“The jury verdict found the defendant ‘guilty of the lesser included offense of receiving stolen property under the value of ONE HUNDRED ($100.00) DOLLARS.’ This verdict was defective, Myers v. State, 1934, 115 Fla. 627, 155 So. 797; Harris v. State, 1907, 53 Fla. 37, 43 So. 311, but was never attacked by a proper motion in arrest of judgment. There is thus no judicial act to be reviewed by us in connection with this point.”
The issue of the sufficiency of the jury verdict has been affirmed on direct appeal. This affirmance, upon remand, is binding upon the trial court. The correctness vel non of a ruling made on an issue actually decided on appeal cannot be the subject of further review under motions filed pursuant to CrPR 1.850. Such issues are res judicata. Culberson v. State (Fla.App.1969), 224 So.2d 363; Whitney v. State (Fla.App.1966), 184 So.2d 207; Mitchell v. State (Fla.App.1967), 203 So.2d 676; certiorari denied, 392 U.S. 913, 88 S.Ct. 2073, 20 L.Ed.2d 1371.
The other issues raised by appellant have not been overlooked, but in view of the foregoing holding we do not deem comment upon them necessary to disposition of the appeal.
The order of the trial court dated July 20, 1970, vacating judgment of conviction and sentence is hereby reversed and set aside and this cause remanded to the trial court with directions to reinstate the judgment and sentence, subject to the discretion of the trial judge to grant such modifications of judgment and sentence as he may deem the justice of the case to require.
Reversed and remanded.
WALDEN and REED, JJ., concur.
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Cited By
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State v. Rollins, 386 So. 2d 619 (Fla. 3d DCA 1980)…e motion to discharge, the opinion of this court must be treated as the law of the case on the speedy trial issue.1 Haddock v. State, 141 Fla. 132, 192 So. 802 (1940); State v. Thompson, 357 So. 2d 428 (Fla. 4th DCA 1978); and State v. Biesendorfer, 244 So. 2d 147 (Fla. 4th DCA 1971). An affirmance predicated upon the presumption of correctness afforded a judgment of the trial court is no less a disposition of the cause because no record was presented in rebuttal.2 See Applegate v. Barnett Bank of Tallahassee…
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Biesendorfer v. State, 247 So. 2d 439 (Fla. 1971)…Certiorari denied. 244 So. 2d 147. CARLTON, Acting C. J., and ADKINS, BOYD, McCAIN and DEKLE, JJ., concur.…
Authorities Cited
- Whitney v. State, 184 So. 2d 207 (Fla. 3d DCA 1966)
- Harris v. State, 53 Fla. 37 (Fla. 1907)
- Elder Emmitt Glover v. State, 203 So. 2d 676 (Fla. 4th DCA 1967)
- Myers v. State, 115 Fla. 627 (Fla. 1934)
- Biesendorfer v. State, 227 So. 2d 322 (Fla. 4th DCA 1969)
- Fort v. California, 392 U.S. 913 (U.S. 1968)
- Larranaga v. Rodriguez, 392 U.S. 913 (U.S. 1968)
- Owens v. State, 224 So. 2d 363 (Fla. 4th DCA 1969)
- Thadeaus R. Culberson v. State, 224 So. 2d 363 (Fla. 2d DCA 1969)