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State v. Gomez

Florida Court of Appeals, Third District

May 2, 2018

The State of Florida, Appellant,
v.
Ibes Gomez, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal Nos. 14-13480, 14-13477, 14-22837, 15-1546 & 15-9420, Stacy D. Glick, Judge.

          Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellant.

          Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellee.

          Before ROTHENBERG, C.J., and EMAS and FERNANDEZ, JJ.

          ROTHENBERG, C.J.

         On June 22, 2015, Ibes Gomez ("the defendant") entered an open plea to the trial court wherein he pled guilty to twenty-four felony offenses charged in five separate cases: 14-13477, 14-13480, 14-22837, 15-9420, and 15-1546. Thereafter, the defendant filed an appeal, claiming that some of the charges he had pled guilty to violated the prohibition against double jeopardy, which required the correction of the judgments in case numbers 14-22837 and 15-1546. Because this Court agreed that the convictions for both grand theft and organized fraud in case numbers 14-22837 and 15-1546 constituted double jeopardy, this Court vacated the two grand theft convictions in those two cases, affirmed the remaining twenty-two convictions reflected in the judgments of these five cases, and remanded for the preparation of a new sentencing scoresheet and reconsideration of the sentence based on a change, if any, to the sentencing scoresheet. See Gomez v. State, 220 So.3d 495 (Fla. 3d DCA 2017). However, despite the clear directive issued in this Court's mandate, and over the State's objection and warning that it would appeal the trial court's failure to comply with this Court's mandate, the trial court permitted the defendant to vacate his plea and set the five cases for trial. The State appeals.

         We treat this appeal as a motion to enforce the mandate in appellate case number 3D16-372, grant the motion, and quash the trial court's order granting the defendant's amended motion for postconviction relief, with instructions to the trial court to follow this Court's mandate by reconsidering the sentences imposed based on a corrected scoresheet and sentencing the defendant accordingly.

         When an appellate court issues a mandate, the trial court's role "becomes purely ministerial, and its function is limited to obeying the appellate court's order or decree." Hearns v. State, 54 So.3d 500, 502 (Fla. 3d DCA 2010); see also Robinson v. Weiland, 988 So.2d 1110, 1112 (Fla. 5th DCA 2008) (holding that "[t]he trial court lacks the discretionary power to go beyond the scope of relief granted by the appellate court. . . . Once the case is decided on appeal, the circuit court is bound by the decree as the law of the case and is required to perform the purely ministerial act of implementing the mandate.") (internal citation omitted); Huffman v. Moore, 834 So.2d 300, 301 (Fla. 1st DCA 2002) ("When an appellate court issues a mandate, compliance with the mandate by the circuit court is purely a ministerial act. The circuit court does not have the authority to modify, nullify or evade that mandate."); Rodriguez v. State, 924 So.2d 985, 986 (Fla. 2d DCA 2006) ("In carrying out an appellate mandate, the trial court's role is purely ministerial. . . . It cannot deviate from the terms of an appellate mandate.") (internal quotation and citations omitted).

         This Court's mandate vacated only two of the twenty-four counts contained in the judgments and remanded for consideration of a modification of the sentence based on a corrected scoresheet, and nothing more. This Court's mandate required only the following ministerial acts: (1) a vacating of the judgments as to only grand theft in case numbers 14-22837 and 15-1546 (leaving intact the remaining convictions in those two cases and the other three cases); (2) the preparation of a new scoresheet; and (3) a reconsideration by the trial court of the sentence in light of the corrected judgments and scoresheet because the plea was an open plea to the court. It was therefore error for the trial court to permit the defendant to vacate his guilty plea as to the remaining twenty-two charges, vacate the convictions, and set the cases for trial.

         The defendant concedes that the law clearly precludes deviation from this Court's mandate but argues that because the defendant had filed a motion for postconviction relief, the trial court had jurisdiction to consider and rule on the defendant's postconviction motion prior to complying with the mandate, and because the trial court granted the motion for postconviction relief, this obviated the need for the trial court to comply with the mandate. We conclude that these arguments are without merit.

         First, as already addressed in this opinion, the trial court was required to follow the instructions contained in this Court's mandate. Second, the defendant's motion for postconviction relief was prematurely filed and prematurely considered by the trial court. This Court remanded for a correction of the judgment in two of the defendant's cases and for reconsideration of the sentences imposed. Thus the judgments and sentences are not yet final. As this Court has previously held, a conviction and sentence become final for the purposes of rule 3.850 when this Court affirms following resentencing. Valdes v. State, 904 So.2d 515, 516 (Fla. 3d DCA 2005).

         Recently, this Court reversed the trial court under strikingly similar circumstances. In State v. Perez-Diaz, 189 So.3d 896, 902 (Fla. 3d DCA 2016), this Court concluded that the downward departure sentence imposed by the trial court was not supported by competent substantial evidence and therefore reversed the judgment and sentence and remanded for resentencing under the sentencing guidelines. Id. Rather than following the directives mandated by this Court, the trial court heard a newly filed motion for postconviction relief, granted the motion, and vacated the finding of guilt and the judgment and sentence. See State v. Perez-Diaz, 232 So.3d 1072, 1072 (Fla. 3d DCA 2017). The State appealed, and this Court treated the appeal as a motion to enforce the mandate. Id. This Court granted the motion and quashed the trial court's order granting Perez-Diaz's motion for postconviction relief. Id. In quashing the trial court's order granting Perez-Diaz's motion for postconviction relief, this Court specifically informed the trial court that it was "not authorized to deviate from the terms of an appellate court's instructions . . . [and] [t]he trial court's action, regardless of how well- intentioned, violated that mandate." Id. at 1072-73 (internal citations and quotation omitted).

         Third, a review of the transcript reveals that the trial court did not perform even a rudimentary evaluation of the defendant's motion for postconviction relief, which is styled as an amended motion for postconviction relief. The amended motion for postconviction relief was filed on July 11, 2017, after the issuance of this Court's mandate but prior to the reconsideration of the defendant's sentences upon remand. In this motion, the defendant claimed that when he entered his open plea of guilty to the trial court, he did so based on the misconduct and misadvise of his prior counsel. The defendant claimed that, at the time of the plea, he was prepared to accept the State's offer, which he outlined in the motion, but based on the conduct of his prior trial counsel, the ...


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