Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-2499 _____________________________ JOHNNY LEE REMBERT, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. Jennie Kinsey, Judge. July 13, 2020 PER CURIAM. Appellant challenges the order of the trial court which denied him resentencing following our mandate on remand in Rembert v. State, 208 So. 3d 336 (Fla. 1st DCA 2017) (Rembert IV). In Rembert IV we relied on Atwell v. State, 197 So. 3d 1040 (Fla. 2016) (Atwell II). Then Atwell II was overruled by the Florida Supreme Court in Franklin v. State, 258 So. 3d 1239 (Fla. 2018), before the trial court resentenced Appellant in compliance with our mandate in Rembert IV. We agree that the trial court was correct to deny resentencing based on clear intervening precedent and therefore affirm the decision of the trial court. Background In 1984, Appellant was convicted of first-degree murder which he committed on June 25, 1976. At the time of the offense Appellant was seventeen years old. He was sentenced to life in prison with the possibility of parole after 25 years. This court affirmed the conviction and sentence. Rembert v. State, 476 So. 2d 721 (Fla. 1st DCA 1985) (Rembert I). In April 2015, Appellant filed a motion to correct illegal sentence arguing that while he did receive a sentence with the possibility of parole, he was not afforded an “individualized sentencing,” as required by Miller v. Alabama, 567 U.S. 460, 465 (2012). Nor, he argued, was he granted any type of review mechanism, as now provided for in section 921.1401, Florida Statutes (2015). See Ch. 2014-220, Laws of Florida. The trial court denied relief observing that Miller does not apply to a sentence of life with the possibility of parole after 25 years and cited McPherson v. State, 138 So. 3d 1201 (Fla. 2d DCA 2014), and Horsley v. State, 160 So. 3d 393 (Fla. 2015), in support of that ruling. This court then affirmed the denial of relief on the authority of Atwell v. State, 128 So. 3d 167 (Fla. 4th DCA 2013) (Atwell I). Rembert v. State, 177 So. 3d 101 (Fla. 1st DCA 2015) (Rembert II). Thereafter, the Florida Supreme Court quashed the Fourth District’s decision in Atwell I. Atwell II, 197 So. 3d at 1050. Accordingly, this court’s decision in Appellant’s prior appeal was quashed by the Supreme Court as well. Rembert v. State, 41 Fla. L. Weekly S621, 2016 WL 7217265 (Fla. Dec. 13, 2016) (Rembert III). Upon the direction from the Supreme Court, this court remanded the case to the trial court for resentencing in conformity with sections 775.082, 921.1401, and 921.1402, Florida Statutes, and Atwell II. Rembert IV, 208 So. 3d at 336. While resentencing in accordance with our mandate in Rembert IV remained pending in the trial court, the State gave notice to the trial court of the then recent decision of the Florida Supreme Court in State v. Michel, 257 So. 3d 3 (Fla. 2018), in which the Court held that a sentence of life with the possibility of parole after 25 years for a juvenile convicted of murder did not qualify for 2 resentencing under Atwell II. After a hearing on the matter, the trial court issued an order denying resentencing on the authority of Michel and Franklin. Although our mandate had issued directing that the trial court resentence Appellant, the trial court nevertheless believed a contrary outcome was required as a result of Michel, which issued after our mandate. The trial court therefore denied resentencing, and this timely appeal follows. Analysis Following our opinion in Rembert IV, our mandate issued to the trial court directing that Appellant be resentenced as then required by Atwell II. See Fla. R. App. P. 9.340(a) (directing the clerk to issue the mandate “after expiration of 15 days from the date of an order or decision”). “The mandate is ‘the official mode of communicating the judgment of the appellate court to the lower court, directing the action to be taken or the disposition to be made of the cause by the trial court.’” Ketcher v. Ketcher, 198 So. 3d 1061, 1063 (Fla. 1st DCA 2016) (quoting Tierney v. Tierney, 290 So. 2d 136, 137 (Fla. 2d DCA 1974)). In a typical case, “[t]he lower court must strictly follow the mandate and does not have authority to alter the mandate in any way.” Ketcher, 198 So. 3d at 1063. “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.” Robinson v. Weiland, 988 So. 2d 1110, 1112 (Fla. 5th DCA 2008). There is, however, an exception to broad pronouncement from cases such as Ketcher and Robinson regarding the lower court’s obligation to comply with a mandate from an appellate court. In Marshall v. State, 44 Fla. L. Weekly D2561c, D2561c, 2019 WL 5296709, *1 (Fla. 2d DCA Oct. 18, 2019) (Order on Motion to Enforce Mandate), the Second District denied a defendant’s motion to enforce a mandate because the legal basis of the mandate was “superseded by the supreme court” in Franklin. The court in Marshall further held that “‘an intervening decision by a higher court contrary to the decision reached on the former appeal’” was a “‘clear example’” of an exception to the general rule which requires the trial court comply with a mandate. Id. at D2561c, *1 (quoting Strazzulla v. Hendrick, 177 So. 2d 1, 4 (Fla. 1965)). This court has recently cited Marshall with approval in affirming a trial 3 court decision to deviate from a mandate. See Bonifay v. State, 45 Fla. L. Weekly D1233c, 2020 WL 2709677, (Fla. 1st DCA May 26, 2020). Appellant argues that our recent case Simmons v. State, 274 So. 3d 468 (Fla. 1st DCA 2019), requires reversal of the trial court order which did not follow our mandate from Rembert IV. However, Simmons has been overruled even more recently by this court en banc. See Rogers v. State, 45 Fla. L. Weekly D1069, 2020 WL 2091121 (Fla. 1st DCA May 1, 2020). More importantly, Simmons and Rogers deal with a trial court’s ability to reconsider its own prior orders, before an appealable final order is entered, when deciding a claim of an illegal sentence under rule 3.800(a), Florida Rules of Criminal Procedure. The issue here clearly differs — a trial court’s ability to disregard a mandate from an appellate court when it is undoubtedly certain that the basis for that mandate has been subsequently overruled before the trial court can comply with the mandate. AFFIRMED. ROBERTS, ROWE, and BILBREY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and Justin F. Karpf, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Tabitha Herrera, Assistant Attorney General, Tallahassee, for Appellee. 4