Summary
treating petition for writ of mandamus as a motion to enforce mandate
Summary of this case from HFC Collection Ctr. v. AlexanderOpinion
Case No. 5D19-1580
08-07-2020
Jerome ALLEN, Appellant, v. STATE of Florida, Appellee.
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.
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 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 , ––– So.3d ––––, 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.