Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ROBERT E. HOWARD, ) ) Appellant, ) ) v. ) Case No. 2D19-3299 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________) Opinion filed May 26, 2021. Appeal from the Circuit Court for Polk County; William D. Sites, Judge. Robert E. Howard, pro se. Ashley Moody, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appellee. EN BANC LABRIT, Judge. Robert Howard, pro se, appeals an order granting the State's motion to deny resentencing after this court issued a mandate directing that Mr. Howard be resentenced. We reverse because the trial court lacked authority to deviate from this court's mandate; in so doing, we recede from Marshall v. State, 44 Fla. L. Weekly D2561 (Fla. 2d DCA Oct. 18, 2019) (Marshall II) for the reasons explained below. Background Mr. Howard was convicted and sentenced in early 1982 for several crimes he committed when he was seventeen years old; the only sentence at issue in this appeal is his life with parole sentence because Mr. Howard has fully served all his other sentences. In 2015, Mr. Howard filed the underlying postconviction motion seeking resentencing pursuant to Graham v. Florida, 560 U.S. 48, 82 (2010), Miller v. Alabama, 567 U.S. 460, 489 (2012), and their progeny. The motion was denied, and Mr. Howard appealed. This court affirmed on the authority of the Fourth District's decision in Atwell v. State, 128 So. 3d 167, 168 (Fla. 4th DCA 2013) (Atwell I), which was then pending review in the Florida Supreme Court. See Howard v. State, 180 So. 3d 1135, 1135 (Fla. 2d DCA 2015). Mr. Howard invoked the jurisdiction of the Florida Supreme Court to review this court's decision. While Mr. Howard's case was pending review in the supreme court, that court quashed Atwell I, holding that a juvenile homicide offender's life with parole sentence violated the Eighth Amendment based largely upon a presumptive parole release date set far beyond the juvenile offender's life expectancy. See Atwell v. State, 197 So. 3d 1040, 1050 (Fla. 2016) (Atwell II). Several months later, the supreme court accepted jurisdiction over Mr. Howard's case and quashed this court's decision consistent with its holding in Atwell II. See Howard v. State, 41 Fla. L. Weekly S578, S578 (Fla. Oct. 28, 2016). The supreme court remanded the case to this court with instructions for the case to be further remanded for resentencing. Id. In its order adopting the supreme court's decision, this court withdrew the mandate issued in Mr. -2- Howard's prior appeal, substituted its remand order for the earlier mandate, and remanded the case to the trial court for resentencing. A few weeks later, the trial court entered an order reversing Mr. Howard's sentence and requiring a resentencing hearing. Over two years later, no resentencing hearing had occurred, and the State moved to rescind the order granting resentencing, relying on intervening case law in which the supreme court receded from Atwell II, based on clarification from the United States Supreme Court. See Franklin v. State, 258 So. 3d 1239, 1241 (Fla. 2018); State v. Michel, 257 So. 3d 3, 6 (Fla. 2018). On July 8, 2019, the trial court denied the State's motion, acknowledging that this court's mandate bound it to resentence Mr. Howard. Three weeks later, the trial court granted the State's motion for reconsideration in an order that (1) vacated its July 8, 2019, order and (2) granted the State's motion to deny resentencing. The trial court reasoned that it could disregard the mandate based on this court's initial order denying the defendant's motion to enforce the mandate in Marshall II.1 Mr. Howard appeals from this order. Analysis Mr. Howard argues (and the State concedes) that the trial court lacked authority to reconsider and rescind the resentencing order because it could not deviate from this court's mandate vacating Mr. Howard's original sentence and requiring a 1In Marshall II, we issued an unelaborated order dated June 28, 2019, denying the defendant's motion to enforce mandate; then on October 18, 2019, we withdrew that order and substituted a more detailed order explaining the reasons for denial of the motion. See Marshall II, 2019 WL 5296709, at * 1. Because our detailed order had not issued in Marshall II when the trial court entered its order granting the State's motion to deny resentencing, it is obvious that the trial court relied on our earlier, unelaborated order. -3- resentencing hearing. Although cognizant of our mandate, the trial court reasoned that it could reconsider and rescind its resentencing order based on Marshall II, which involves a timeline and facts materially indistinguishable from those presented here.2 During the pendency of the instant appeal, the supreme court issued its decision in State v. Okafor, 306 So. 3d 930, 935 (Fla. 2020). Okafor controls our disposition of this case and requires us to recede from Marshall II. In the run-up to Marshall II, this court reversed a postconviction order denying Mr. Marshall resentencing and, pursuant to Atwell II, remanded the case for resentencing. See Marshall v. State, 214 So. 3d 776, 779 (Fla. 2d DCA 2017) (Marshall I). Before Mr. Marshall was resentenced, the supreme court receded from Atwell II, and the postconviction court granted the State's motion to deny resentencing. Marshall II, 44 Fla. L. Weekly at D2561. Mr. Marshall then moved to enforce the mandate in Marshall I. This court denied the motion, explaining that "our reasoning in Marshall [I] has been superseded by the supreme court in Franklin." Id. In so ruling, we relied upon precedent establishing an exception to the law of the case doctrine when there has been an "intervening decision by a higher court contrary to the decision reached on the former appeal." Id. (quoting Strazzulla v. Hendrick, 177 So. 2d 1, 4 (Fla. 1965)). In Okafor, the defendant was convicted of murder and sentenced to death. Okafor, 306 So. 3d at 932. On direct appeal, the supreme court affirmed the conviction 2Marshall II involved a motion to enforce a mandate, and this case is a direct appeal, but that procedural distinction is immaterial to our decision for the reasons discussed below. -4- but vacated the death sentence pursuant to Hurst v. State, 202 So. 3d 40 (Fla. 2016). Okafor, 306 So. 3d at 932. Before Mr. Okafor was resentenced, the court receded from Hurst. Id. Relying on an intervening change in the law, the State asked the trial court to reinstate the death sentence. Id. The trial court denied the State's request, ruling that it lacked authority to deviate from the court's mandate. Id. The State invoked the supreme court's all writs jurisdiction, asking that the court either direct the trial court to reinstate the death sentence or prohibit the trial court from going forward with resentencing. Id. The supreme court denied the petition, holding that resentencing was required notwithstanding the intervening change in law. Id. at 933–35. Okafor arose in a different sentencing context than this case, but—like this case—Okafor "ultimately is about the finality of [a] judgment resolving [an] appeal." Id. at 933. And "[i]t is a bedrock principle that 'the judgment of an appellate court, where it issues a mandate, is a final judgment in the cause.' " Id. (quoting O.P. Corp. v. Vill. of N. Palm Beach, 302 So. 2d 130, 131 (Fla. 1974)). As applicable to this case, Okafor explains that when "[t]he substance of" an appellate court's judgment is to vacate a sentence and remand for a resentencing, "there is no sentence until the [trial] court imposes a new one." Id. (second alteration in original) (quoting United States v. Mobley, 833 F.3d 797, 802 (7th Cir. 2016)). Therefore, to undo such a judgment, an appellate court "would have to recall [its] mandate and then render a different judgment." Id. A court may not recall a mandate more than 120 days after it is issued. Id. (citing § 43.44, Fla. Stat. (2019), and Fla. R. App. P. 9.340(a)). Here, the judgment of the supreme court (and in turn our judgment) necessarily operated to vacate Mr. Howard's sentence, and our mandate remanded this -5- case to the trial court to conduct a resentencing hearing. Accordingly, and by virtue of the trial court's order reversing Mr. Howard's original sentence and directing a resentencing hearing, Mr. Howard's original sentence is now a nullity. See id. at 933. To change this status quo, we would need to recall our mandate—something we can no longer do. See id. The supreme court did not expressly disapprove or overrule Marshall II, but its treatment of Marshall II effectively renders Marshall II a dead letter. See Okafor, 306 So. 3d at 934 n.4 (finding Marshall II "[un]persuasive" in part because it did not address "the finality of judgment principle" discussed in Okafor). The Marshall II court premised its decision on an exception to the law of the case doctrine as expressed in Strazzulla. Marshall II, 44 Fla. L. Weekly at D2561. But as the Okafor court explained, "[t]he exceptions to the law of the case doctrine do not speak to" the issue of whether a court can "revisit and undo a final judgment." Okafor, 306 So. 3d at 934. As the Okafor court clarified, there is a "difference between a final appellate court judgment and the decisions on questions of law that underlie that judgment." Id. at 935. The court further explained that "the State's petition does not ask us to decide [which law] should govern Okafor's resentencing going forward. Rather, the petition asks us to revisit and undo a final judgment." Id. at 934 (footnote omitted). While intervening case law "established a new constitutional baseline going forward, [the] judgment vacating Okafor's death sentence is final and no longer subject to reconsideration." Id. at 935. The same is true here.3 3The State argues that because Mr. Howard's motion sought relief under rule 3.800, the order reversing Mr. Howard's sentence and directing resentencing is not -6- The trial court understandably was reluctant to order resentencing under the circumstances. But—as the State necessarily and correctly acknowledges—Mr. Howard's original sentence no longer exists, and the trial court is not empowered to disregard this court's directive that Mr. Howard be resentenced. See id. In short, as was the case in Okafor, our mandate is final and neither we nor the trial court can reinstate Mr. Howard's original sentence. For these reasons, we recede from Marshall II, and we reverse and remand with instructions to conduct a resentencing hearing. As we recognized in Croft v. State, 295 So. 3d 307, 309 (Fla. 2d DCA 2020), Mr. Howard "may have won a pyrrhic victory because 'the decisional law effective at the time of the resentencing applies.' Hence, upon resentencing, Mr. [Howard] may yet receive the same sentence." Id. at 309 (citations omitted) (quoting State v. Fleming, 61 So. 3d 399, 400 (Fla. 2011)).4 Reversed and remanded. KHOUZAM, C.J., and NORTHCUTT, CASANUEVA, SILBERMAN, KELLY, VILLANTI, LaROSE, MORRIS, BLACK, SLEET, LUCAS, ROTHSTEIN-YOUAKIM, ATKINSON, SMITH, and STARGEL, JJ., Concur. final and therefore the postconviction court could rescind it. The State's argument is not well-founded. Mr. Howard's motion expressly and primarily sought relief under rule 3.850 and met the pleading requirements of that rule. Accordingly, the postconviction court was required to treat it—and we treat it—as a rule 3.850 motion. See Hogan v. State, 799 So. 2d 1095, 1095 (Fla. 2d DCA 2001); Gladon v. State, 227 So. 3d 651, 652-53 (Fla. 4th DCA 2017). Consequently, the order reversing Mr. Howard's sentence and directing resentencing was final, and the postconviction court lacked jurisdiction to rescind it. See Croft v. State, 295 So. 3d 307, 309 (Fla. 2d DCA 2020); see also State v. Jackson, 306 So. 3d 936, 940–42 (Fla. 2020). 4To the extent it is appropriate and relevant to Mr. Howard's resentencing, the trial court may wish to consider Mr. Howard's "extraordinary" story as recited by our former colleague in Howard, 180 So. 3d at 1135–36 (Altenbernd, J., concurring). -7-