final until disposition of timely filed motion for rehearing.
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.
Jo Bondi, Attorney General, and Sandra Lipman, Assistant
Attorney General, for appellant.
J. Martinez, Public Defender, and Shannon Hemmendinger,
Assistant Public Defender, for appellee.
ROTHENBERG, C.J., and EMAS and FERNANDEZ, JJ.
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.
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.
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).
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.
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.
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).
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).
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 ...