Christine Lashay Rogers v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-878 _____________________________ CORRECTED PAGES: pg 14 & 15 CHRISTINE LASHAY ROGERS, REMOVED AND CORRECTED FOOTNOTE NUMBERS FROM Appellant, UNDERLINED SECTIONS MAILED: May 4, 2020 BY: FTA v. CORRECTED PAGE: pg 13 STATE OF FLORIDA, CORRECTIONS ARE UNDERLINED IN BLUE MAILED: May 15, 2020 Appellee. BY: FTA _____________________________ On appeal from the Circuit Court for Escambia County. Stephen A. Pitre, Judge. May 1, 2020 ON MOTION FOR REHEARING EN BANC ROWE, J. The State moved for rehearing en banc of our decision in this appeal, Rogers v. State, 45 Fla. L. Weekly D357 (Fla. Feb. 13, 2020). For the reasons that follow, we grant the motion, withdraw the panel opinion, and substitute this opinion in its place. I. Factual and Procedural Background On July 5, 2003, law enforcement officers responded to a report of a stabbing on Belmont and Q Streets in Pensacola. When officers arrived on the scene, they found the fifteen-year-old victim lying in the middle of the street in a pool of blood.  Witnesses reported that Christine Lashay Rogers and the victim had been arguing earlier. Rogers accused the victim of hitting her with fireworks. Rogers left and returned with a butcher-style knife. The victim was standing in her yard when Rogers approached her, armed with the knife. When the victim saw Rogers, she ran, but Rogers pursued her. The victim stopped near a car and tried to punch Rogers. But Rogers stabbed the victim twice in the upper chest with the knife. One of the wounds was four inches deep and penetrated the victim’s lung. Rogers fled, taking the knife with her. The victim was rushed to the hospital, but she did not survive the attack. Rogers was thirteen years old at the time of the stabbing. She was charged and convicted of second-degree murder with a weapon. She received a forty-five-year prison sentence, with five years suspended. But we reversed her conviction and sentence because the trial court failed to conduct a competency hearing. Rogers v. State, 954 So. 2d 64, 65 (Fla. 1st DCA 2007). On remand, the trial court found her competent to proceed and retried her. The jury found her guilty, and we affirmed her judgment and sentence. Rogers v. State, 75 So. 3d 726 (Fla. 1st DCA 2011) (unpublished table decision). In 2017, Rogers moved for postconviction relief under Florida Rule of Criminal Procedure 3.800(a). She argued that she was entitled to resentencing under Miller v. Alabama, 132 S. Ct. 2455 (2012), and Graham v. Florida, 560 U.S. 48 (2010). Rogers asserted that her forty-year sentence was a de facto life sentence that violated the Eighth Amendment. 1 The State conceded error. The trial court granted Rogers’ motion and ordered resentencing. A year later, when Rogers still had not been resentenced, 2 the State filed an “addendum” to its earlier concession. Citing new decisions from this Court and the Florida Supreme Court, the 1 In her motion, Rogers refers to her sentence as a forty-year sentence. Stated more accurately, it is a forty-five-year sentence, with five years suspended. 2 The record does not reveal the reasons for the delay. 2 State argued that Rogers’ sentence was not a de facto life sentence and did not violate the Eighth Amendment. The State urged the trial court to vacate its order granting resentencing. In 2019, the trial court entered an amended order, vacating its earlier order and denying Rogers’ claim of an illegal sentence. Rogers appealed. Citing our decision in Jordan v. State, 81 So. 3d 595 (Fla. 1st DCA 2012), Rogers argued that the trial court lacked authority to rescind the original order granting relief under rule 3.800(a) because the State did not timely seek rehearing or appeal. Based on our decision in Simmons v. State, 274 So. 3d 468 (Fla. 1st DCA 2019), we reversed the trial court’s order vacating its order granting Rogers relief. Rogers, 45 Fla. L. Weekly at D357. The State seeks rehearing en banc. II. Basis for En Banc Rehearing The State urges this Court to rehear this case and recede from Simmons. The State contends that Simmons misapplied the law governing a trial court’s jurisdiction to reconsider an order granting postconviction relief under rule 3.800(a) when resentencing has not yet occurred. The State argues we should recede from Simmons for three reasons. First, an order granting a rule 3.800(a) motion is not a final order. Second, the State cannot appeal an order granting a rule 3.800(a) motion until resentencing has occurred. And third, the trial court has inherent authority to reconsider an order granting a rule 3.800(a) motion if resentencing has not occurred. We agree with all three arguments. 3 3 As noted by Judge Bilbrey in his concurring opinion, the State in Simmons did not advance several arguments it now presents to support rehearing in Rogers. As a member of the Simmons panel and the author of that opinion, I find that the State’s arguments on rehearing here are well taken. See Ramos v. Louisiana, No. 18-5924 (U.S. Apr. 20, 2020) (“Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory. But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.”). 3  We followed Jordan in Rogers and Simmons. In Jordan, we determined that a trial court lacked jurisdiction to reconsider an order granting relief under rule 3.800(a) when the State did not challenge the order by timely moving for rehearing or appealing. 81 So. 3d at 596. Both Simmons and Jordan misapplied the law. We now conclude that orders granting relief under rule 3.800(a) are not final or appealable, and so the trial court retains its inherent authority to reconsider such orders. 4 En banc rehearing is appropriate 5 because this case presents issues of exceptional importance. See Fla. R. App. P. 9.331(a) (“En 4 Judge Tanenbaum suggests that the Rogers panel could have affirmed the order on appeal without receding from Simmons. We disagree. Simmons, Jordan, and Rogers all involved trial courts rescinding orders granting resentencing under rule 3.800(a), and all held that the trial court lacked authority to do so. See Sims v. State, 260 So. 3d 509, 514 (Fla. 1st DCA 2018) (observing that “[e]ach panel decision is binding on future panels, absent an intervening decision of a higher court or this court sitting en banc”); In re Rule 9.331, Determination of Causes by a Dist. Court of Appeal En Banc, Fla. R. App. P., 416 So. 2d 1127, 1128 (Fla. 1982) (“[T]he suggestion that each three-judge panel may rule indiscriminately without regard to previous decisions of the same court is totally inconsistent with the philosophy of a strong district court of appeal which possesses the responsibility to set the law within its district.”). 5 Judge Makar argues that prudential concerns counsel against rehearing this case en banc because the supreme court is considering “the identical issue.” We disagree. The Florida Supreme Court has accepted review in State v. Frances, SC20-252 and State v. Jackson, SC20-257—both death penalty appeals. In both cases, the defendants sought postconviction relief under Florida Rule of Criminal Procedure 3.851, seeking to set aside their death sentences based on Hurst v. State, 202 So. 3d 40 (Fla. 2016). In each case, the lower courts initially granted relief. But before a new penalty phase began, the Florida Supreme Court decided State v. Poole, 45 Fla L. Weekly S41 (Fla. Jan. 23, 2020). Following that decision, the State moved to reinstate the death sentences in both cases. But the State’s motions were denied. 4 banc hearings and rehearing shall not be ordered unless the case or issue is of exceptional importance or unless necessary to maintain uniformity in the court’s decisions.”). In the eleven months since this Court decided Simmons, we have followed Simmons in nine cases. The Fourth and the Fifth Districts have also adopted the reasoning of Simmons. See Jones v. State, 279 So. 3d 172 (Fla. 4th DCA 2019); Magill v. State, 287 So. 3d 1262 (Fla. 5th DCA 2019). Statewide, seventeen opinions have issued citing Simmons to reverse trial court orders. 6 Because of the continuing effect of Simmons on resentencing proceedings throughout Based on Simmons, the lower courts ruled that they lacked authority to reconsider or vacate their earlier orders granting the defendants’ rule 3.851 motions. Deciding the issues raised in those two death penalty appeals may require consideration of some of the issues addressed here. But the supreme court would not be required to address the State’s authority to appeal an order granting resentencing under rule 3.800(a), the finality of an order granting a rule 3.800(a) motion, or the trial court’s inherent authority to reconsider such an order. For these reasons, our consideration of Rogers en banc is not a “race” to compete with the supreme court. Rather, our consideration of this case provides an opportunity to correct several errors in our postconviction jurisprudence. 6 Rogers v. State, 45 Fla. L. Weekly D357 (Fla. 1st DCA Feb. 13, 2020); Melton v. State, 45 Fla. L. Weekly D357 (Fla. 1st DCA Feb. 13, 2020); Earley v. State, 289 So. 3d 573 (Fla. 1st DCA 2020); Albritton v. State, 45 Fla. L. Weekly D283 (Fla. 1st DCA Feb. 6, 2020); Baldwin v. State, 45 Fla. L. Weekly D197 (Fla. 1st DCA Jan. 22, 2020); Magill v. State, 287 So. 3d 1262 (Fla. 5th DCA 2019); Price v. State, 286 So. 3d 922 (Fla. 5th DCA 2019); Keebler v. State, 286 So. 3d 385 (Fla. 5th DCA 2019); White v. State, 284 So. 3d 1096 (Fla. 4th DCA 2019); German v. State, 284 So. 3d 572 (Fla. 4th DCA 2019); Wintill v. State, 283 So. 3d 1283 (Fla. 1st DCA 2019); Scott v. State, 283 So. 3d 1280 (Fla. 4th DCA 2019); Henderson v. State, 280 So. 3d 1132 (Fla. 1st DCA 2019); Wehr v. State, 279 So. 3d 340 (Fla. 5th DCA 2019); Jones v. State, 279 So. 3d 172 (Fla. 4th DCA 2019); Barnes v. State, 278 So. 3d 321 (Fla. 1st DCA 2019); State v. Jackson, 276 So. 3d 488 (Fla. 1st DCA 2019). 5 Florida, we consider this case en banc as one of exceptional importance and recede from Simmons, Jordan, and the decisions from this Court following those cases. III. Simmons Lester Simmons was fifteen years old when he raped an adult woman. He was convicted in 1967, after pleading guilty in exchange for the prosecutor’s agreement not to recommend a sentence of death. 7 See Simmons, 274 So. 3d at 469. At the sentencing hearing, the victim recounted how Simmons surreptitiously entered her home and raped her. Simmons was sentenced to life with the possibility of parole. Simmons was granted parole twice and spent nearly eighteen years on parole, before his parole was revoked for a second time. Id. In 2016, nearly fifty years after his sentence became final, Simmons moved for postconviction relief under rule 3.800(a). Simmons argued that his sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment, citing Graham and Atwell v. State, 197 So. 3d 1040 (Fla. 2016). The State conceded error. See id. at 470. The trial court granted Simmons’ motion and ordered resentencing. But before resentencing occurred, this Court decided Currie v. State, 219 So. 3d 960 (Fla. 1st DCA 2017). There, we held that a sentence of life with the possibility of parole, like the one Simmons received, was not the functional equivalent of a life sentence without the possibility of parole when the defendant was in fact released on 7 At the time, the death penalty could be imposed for the offense. Ten years later, the United States Supreme Court held that a death sentence for rape of an adult woman was unconstitutional. Coker v. Georgia, 433 U.S. 584, 592 (1977). Then in 2005, the Court held unconstitutional the imposition of the death penalty on an offender who was under the age of eighteen when he committed the offense. Roper v. Simmons, 543 U.S. 551, 574–75 (2005). 6 parole. 8 See id. at 960. Based on this change in the law, the trial court rescinded its original order and denied the rule 3.800(a) motion. Simmons, 274 So. 3d at 470. Simmons appealed. He argued that because the State did not challenge the original order by timely moving for rehearing or appealing, the trial court lacked jurisdiction to rescind the order. See id. The State countered that because resentencing had yet to occur, the original order was not final and the trial court retained the inherent authority to revisit the ruling. Id. at 471. We rejected the State’s argument and held that the trial court lacked procedural jurisdiction to rescind its order granting relief under rule 3.800(a) because the order became final when neither party moved for rehearing or appealed. Id. at 471–72. In so holding, we relied on our decisions in Jordan and Slocum v. State, 95 So. 3d 911 (Fla. 1st DCA 2012), and the supreme court’s decision in Taylor v. State, 140 So. 3d 526 (Fla. 2014). As explained below, we erred in relying on Taylor and Slocum because neither case involved an order granting relief under rule 3.800(a). And although Jordan did involve an order granting relief under rule 3.800(a), we now conclude that the Jordan court misapplied the law. IV. Orders Granting Relief Under Rule 3.800(a) Are Not Final In Simmons, we held that a trial court lacks jurisdiction to reconsider an order granting relief under rule 3.800(a) because such an order becomes final when the State fails to appeal or seek rehearing. 274 So. 3d at 471–72. In concluding that an order granting relief under 3.800(a) is a final order, we cited our earlier decision in Jordan. Jordan involved an order granting a postconviction motion filed under rule 3.800(a). Before resentencing occurred, the trial 8 The Florida Supreme Court reached a similar conclusion in State v. Michel, 257 So. 3d 3 (Fla. 2018). The court held that a juvenile’s life sentence with the possibility of parole after twenty- five years was not the equivalent of life without the possibility of parole and thus was not cruel and unusual punishment under the Eighth Amendment. Id. at 7. 7 judge passed away and a successor judge was appointed. See Jordan, 81 So. 3d at 596. The successor judge granted the State’s motion for reconsideration and denied Jordan’s rule 3.800(a) motion. Id. Jordan appealed, arguing that the successor judge lacked jurisdiction to reconsider the original ruling because that order was final. See id. The State conceded error, admitting “that the motion for reconsideration was untimely and the court was therefore without jurisdiction to rule upon it.” Id. The Jordan court accepted the State’s concession. Id. It concluded that the original order granting the rule 3.800(a) motion was final “because it brought the postconviction proceedings to an end” and because resentencing was a de novo proceeding. Id. In reaching this conclusion, the court determined that the State could challenge the order “only by way of a timely motion for rehearing or an appeal.” Id. (emphasis in original). Because the State’s motion for rehearing was untimely, the Jordan court held that the successor judge lacked jurisdiction to vacate the original order granting the rule 3.800(a) motion. See id. In so holding, the Jordan court cited State v. White, 470 So. 2d 1377 (Fla. 1985). Jordan, 81 So. 3d at 595. But White addressed an order granting a Florida Rule of Criminal Procedure 3.850 motion, not a rule 3.800(a) motion. 470 So. 2d at 1378. There, the State appealed an order granting White’s rule 3.850 motion and vacating White’s death sentences as constitutionally impermissible. Id. The White court held that it had jurisdiction to hear the State’s appeal because rule 3.850 “by its own terms” considered orders entered on those motions as final judgments. Id. at 1378–79. As this Court did in Simmons, the Jordan court failed to appreciate the differences between rules 3.800(a) and 3.850. 9 Rule 3.800(a) does not address the finality of any order entered on such 9 The Second District recently discussed the differences between the rules and held that a postconviction court lacked jurisdiction to rescind an order granting a rule 3.850 motion. See Croft v. State, 45 Fla. L. Weekly D711 (Fla. 2d DCA Mar. 25, 2020). 8 a motion, while rule 3.850 does. 10 For this reason, the Jordan court incorrectly relied on White to hold that an order granting a rule 3.800(a) motion was a final order. Our reliance on Jordan in Simmons was similarly misplaced. Instead, in Jordan and Simmons, we should have applied the traditional test for finality to determine whether an order granting a rule 3.800(a) motion is a final order: [T]he test employed by the appellate court to determine finality of an order, judgment or decree is whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected. State v. Gaines, 770 So. 2d 1221, 1223–24 (Fla. 2000) (quoting S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974)). While “there must be a terminal point in every proceeding both administrative and judicial, at which the parties and the public may rely on a decision as being final and dispositive of the rights and issues involved therein,” this point is not reached until resentencing occurs. Austin Tupier Trucking v. Hawkins, 377 So. 2d 679, 681 (Fla. 1979). An order granting relief under rule 3.800(a) does not bring an end to the judicial labor required to provide relief, so the order does not become final until resentencing has occurred. See Farina v. State, 191 So. 3d 454, 459 (Fla. 2016) (Canady, J., dissenting) (“The order granting the Defendant’s 3.800(a) motion is not a final order, as judicial labor, i.e., resentencing, is still required.”) (quoting State v. Delvalle, 745 So. 2d 541, 542 (Fla. 4th DCA 1999)); Morgan v. State, 45 Fla. L. Weekly D791 (Fla. 2d DCA Apr. 3, 2020) (“This court has held that a ‘rule 3.800(a) motion d[oes] not create a new, separate proceeding.’”) (quoting State v. Rudolf, 821 So. 2d 385, 386 (Fla. 2d DCA 2002)). And so, we conclude that an order granting a rule 10 See Judge v. State, 596 So. 2d 73, 76–77 (Fla. 2d DCA 1991) (on rehearing en banc) (explaining the differences between rule 3.800(a) and rule 3.850 and discussing the narrower application of rule 3.800(a)). 9 3.800(a) motion is not a final order. See Adams v. State, 949 So. 2d 1125, 1126 (Fla. 3d DCA 2007). We recede from our decisions in Jordan and Simmons holding to the contrary. V. Orders Granting Rule 3.800(a) Motions Are Not Appealable In Simmons, we also held that the State could have appealed the trial court’s order granting relief under rule 3.800(a). 274 So. 3d at 470. We relied on the Florida Supreme Court’s decision in Taylor to support our holding. That reliance was misplaced. In Taylor, the trial court entered an order partially granting and partially denying Taylor’s postconviction motion filed under rule 3.850. See 140 So. 3d at 527. While Taylor’s motion for rehearing on the denial of his claims was pending, the trial court proceeded with resentencing. See id. at 528. Taylor timely appealed his new sentence, and it was affirmed. Later, Taylor filed an amended motion for rehearing because the lower court never ruled on his previous motion. That motion was denied, and Taylor appealed. The Fifth District dismissed the appeal for lack of jurisdiction. The court held that Taylor “should have raised any issues related to the disposition of his other postconviction claims [in his first] appeal after resentencing.” Id. at 528. Taylor sought review in the Florida Supreme Court. The issue before the supreme court was whether “an order disposing of a postconviction motion which partially denies and partially grants relief is a final order for purposes of appeal, when the relief granted requires subsequent action in the underlying case, such as resentencing.” Id. at 527. The court determined that such an order was “final for purposes of appeal.” Id. In making that determination, the court cited a recent amendment to rule 3.850 that added subdivision (f)(8)(C). That section provided that “[t]he order issued after the evidentiary hearing shall resolve all the claims raised in the motion and shall be considered the final order for purposes of appeal.” Id. at 529. In Simmons, we relied on the Taylor court’s “final for purposes of appeal” statement to hold that an order granting relief under 3.800(a) is likewise final for purposes of appeal. On closer examination of Taylor, we conclude that our reliance on that 10 decision was misplaced and that the cases are distinguishable for three reasons. 11 First, Taylor addressed whether an order partially denying a rule 3.850 motion was appealable. The Taylor court never addressed the part of the order granting relief. Id. Nor did the court suggest any limitation on the trial court’s authority to reconsider its ruling between issuing the order and resentencing the defendant. Second, two separate rules of procedure address the appealability of an order granting relief under rule 3.850, while no procedural rule authorizes an appeal from an order granting relief under rule 3.800(a). Florida Rule of Appellate Procedure 9.140(c) describes the orders in criminal cases that the State may appeal. Under the rule, the State may appeal orders “granting relief under Florida Rules of Criminal Procedure 3.801, 3.850, 3.851, or 3.853.” Fla. R. App. P. 9.140(c)(1)(J). And as the Taylor court observed, Florida Rule of Criminal Procedure 3.850(f)(8)(C) provides that an order granting postconviction relief after an evidentiary hearing is final for purposes of appeal. But unlike orders granting relief under rule 3.850, no rule or statute authorizes the State to appeal an order granting relief under rule 3.800(a). The Florida Statutes limit the State’s right to appeal a criminal ruling. State v. Odom, 24 So. 3d 1266, 1268 (Fla. 1st DCA 2009) (discussing the statutory limitations on the State’s right to appeal). Section 924.066(2), Florida Statutes, allows “[e]ither the State or a prisoner in custody” to “obtain review” of “a trial court’s adverse ruling granting or denying collateral relief.” But this statute necessarily applies only to final orders because the supreme court has “the sole authority of deciding when appeals may be taken from interlocutory orders.” Gaines, 770 So. 2d at 1225 (quoting R.J.B. v. State, 408 So. 2d 1048, 1050 (Fla. 1982)); 11 Our reliance on our earlier decision in Slocum was similarly misplaced. Like Taylor, Slocum involved an appeal from an order partially granting and partially denying relief under rule 3.850. Slocum, 95 So. 3d at 912. 11 Art. V, § 4(b), Fla. Const. (vesting the supreme court with the authority to adopt rules to allow review of interlocutory orders). And so, for the State to appeal an order granting relief under rule 3.800(a)—a nonfinal order—the rules of criminal or appellate procedure must authorize the appeal. But no such authority exists. Although Florida Rule of Appellate Procedure 9.140(b)(1)(D) allows a defendant to appeal an order denying or dismissing a rule 3.800(a) motion, it does not authorize either party to appeal an order granting a rule 3.800(a) motion. See also Fla. R. Crim. P. 3.800(a)(4) (requiring all orders denying or dismissing motions to contain a notice of the right to appeal). Instead, the State may appeal only after resentencing, and only those orders “imposing an unlawful or illegal sentence or imposing a sentence outside the range permitted by the sentencing guidelines.” Fla. R. App. P. 9.140(c)(1)(M). And because an order granting relief under rule 3.800(a) is not final or appealable, we conclude that a trial court does not lose procedural jurisdiction after granting a rule 3.800(a) motion but before resentencing the defendant. See 14302 Marina San Pablo Place SPE, LLC v. VCP-San Pablo, Ltd., 92 So. 3d 320, 321 (Fla. 1st DCA 2012) (Ray, J., concurring) (defining procedural jurisdiction as the court’s authority to act in a particular case). Our holdings in Jordan and Simmons to the contrary were incorrect. VI. Orders Granting Relief Under Rule 3.800(a) May Be Reconsidered if the Defendant Has Not Been Resentenced In Simmons and Jordan, we also concluded that a trial court lacks authority to reconsider an order granting rule 3.800(a) relief even when resentencing has not yet occurred. This conclusion was incorrect for two reasons. First, as explained above, an order granting relief under rule 3.800(a) is a nonfinal order. A trial court may reconsider an order granting a rule 3.800(a) motion just as it can reconsider other nonfinal orders, until resentencing is complete. See Farina, 191 So. 3d at 459 (Canady, J., dissenting) (holding that an order is not final if “judicial labor is still required to effectuate a termination of the case”); Rudolf, 821 So. 2d at 386 (holding that an order granting a 12 rule 3.800(a) motion “is essentially a nonfinal order entered after the entry of an appealable final order”). Second, a trial court has the inherent authority to reconsider an order until it becomes final. In Simmons, the State cited Florida Rule of Criminal Procedure 3.192 to argue that the trial court retained its inherent authority to reconsider an order granting relief under rule 3.800(a). This rule provides that “[n]othing in this rule precludes the trial court from exercising its inherent authority to reconsider a ruling while the court has jurisdiction of the case.” Fla. R. Crim. P. 3.192. We rejected the State’s argument on the retention of the trial court’s inherent authority based on our reading of the preceding sentence, which provides, “This rule shall not apply to postconviction proceedings pursuant to rule 3.800(a), 3.801, 3.850, 3.851, or 3.853.” Fla. R. Crim. P. 3.192. Our reading of rule 3.192 was flawed. The better reading of the limitation in rule 3.192 is that the procedural requirements for rehearing outlined in rule 3.192 do not apply to rehearing motions filed under rules 3.800(a), 3.801, 3.850, 3.851, or 3.853. Indeed, several of these rules provide their own timelines for rehearing. 12 So understood, the last sentence of rule 3.192 clarifies that the rule does not infringe on the trial court’s inherent authority to revisit its nonfinal rulings. See Schultz v. State, 289 So. 3d 921, 924 (Fla. 4th DCA 2020) (recognizing a trial court’s inherent authority to reconsider its ruling on a motion to withdraw); Oliver v. Stone, 940 So. 2d 526, 529 (Fla. 2d DCA 2006) (“It is well established that a trial court may reconsider and modify interlocutory orders at any time until final judgment is entered.”). And so, until resentencing occurs, a 12 See Fla. R. Crim. P. 3.800(b)(1)(B) (authorizing rehearing of “any signed, written order entered under subdivisions (a) and (b) of this rule”); Fla. R. Crim. P. 3.801(e) (implementing the same rehearing procedures as found in rule 3.850); Fla. R. Crim. P. 3.850(j) (allowing a party to file a motion for rehearing within fifteen days of service); Fla. R. Crim. P. 3.851(f)(7) (authorizing a motion for rehearing within fifteen days of the date of rendition); Fla. R. Crim. P. 3.853(e) (requiring motions for rehearing to be filed within fifteen days after service of the order denying relief). 13 trial court has the inherent authority to reconsider an order granting a rule 3.800(a) motion. 13 VII. Application to Rogers Rogers moved for postconviction relief under rule 3.800(a), arguing that her forty-year sentence was a de facto life sentence and that she was entitled to resentencing under Graham and Miller. After the State conceded error, the trial court granted Rogers’ motion and ordered resentencing. But before resentencing, this Court decided Hart v. State, 255 So. 3d 921 (Fla. 1st DCA 2018). In Hart, we held that a juvenile offender’s fifty-year sentence did not violate the Eighth Amendment or Graham. See id. at 927. Based on Hart, the State asked the trial court to reconsider the order granting resentencing. The State argued that Rogers’ forty-year sentence did not violate Miller or Graham because her sentence was not a de facto life, life, or mandatory sentence. The State asserted that Rogers would have a meaningful opportunity for release during her lifetime. Using the gain-time formula, the State calculated that Rogers could obtain release by the time she was forty-two years old. After hearing from the parties, the court granted the State’s motion and rescinded its order granting Rogers’ rule 3.800(a) motion. On appeal, Rogers argues that the State’s motion for reconsideration was untimely because it was filed over a year after the trial court rendered its order granting her postconviction motion. Rogers then asserts that the State’s failure to appeal that order divested the trial court of jurisdiction to rescind it. Finally, Rogers argues that even if the court retained jurisdiction to revisit its original order, the court erred in denying relief under rule 13 In his concurrence, Judge B. L. Thomas makes sound arguments to support a trial court’s inherent authority to reconsider any nonfinal order in a criminal case. Even so, we confine our analysis to the question presented here—the authority of a trial court to reconsider an order granting resentencing under rule 3.800(a). 14 3.800(a). She claims she is entitled to resentencing because her sentence provides for release only at the end of her sentence and allows for no opportunity to obtain early release based on a showing of maturity and rehabilitation. We disagree. Because resentencing had not yet occurred, the trial court retained jurisdiction to reconsider its original ruling. The trial court properly applied the law as it existed when it considered the motion to reconsider and did not err in denying Rogers relief under rule 3.800(a). Hart, 255 So. 3d at 927. Rogers was sentenced to forty-five years’ imprisonment, with five years suspended. This is not a de facto life sentence. She was fifteen years old when her sentence was imposed. Even if she serves her entire sentence, she would be released before the age of fifty-five (assuming the other five years of her sentence remain suspended). Because Rogers’ sentence affords her a meaningful opportunity for release during her natural life, the trial court correctly found that her sentence does not violate Graham, and it properly denied her rule 3.800(a) motion. 14 See Hart, 255 So. 3d at 927. VIII. Conclusion An order granting postconviction relief under rule 3.800(a) is not final or appealable until resentencing has occurred. Until then, the trial court retains jurisdiction and has the inherent authority to reconsider an order granting relief under rule 3.800(a). For these reasons, we recede from Simmons and Jordan and affirm the trial court’s order finding that Rogers was not entitled to postconviction relief. As noted above, the Fourth and Fifth Districts have followed Simmons and held that a trial court may not reconsider or vacate an order granting relief under rule 3.800(a), even when 14 The supreme court reached a similar conclusion in Pedroza v. State, 45 Fla. L. Weekly S93 (Fla. Mar. 12, 2020). The supreme court clarified that “a juvenile offender’s sentence does not implicate Graham, and therefore Miller, unless it meets the threshold requirement of being a life sentence or the functional equivalent of a life sentence.” Id. 15 resentencing has not occurred. See Jones v. State, 279 So. 3d 172 (Fla. 4th DCA 2019); Magill v. State, 287 So. 3d 1262 (Fla. 5th DCA 2019). Based on our holding here, we certify conflict with Jones and Magill. AFFIRMED; CONFLICT CERTIFIED. RAY, C.J., and WOLF, LEWIS, ROBERTS, OSTERHAUS, BILBREY, WINOKUR, M.K. THOMAS, and NORDBY, JJ., concur. B.L. THOMAS, J., concurs specially with opinion, in which ROBERTS, WINOKUR, JAY, and M.K. THOMAS, JJ., join. BILBREY, J., concurs with opinion. TANENBAUM, J., concurs in the result, with opinion. MAKAR, J., dissents from the denial of motion for dissolution with opinion, in which KELSEY, J., concurs as to result only. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ B.L. THOMAS, J., concurring specially. The State’s motion for rehearing en banc correctly expressed the foundational principle at issue here: “Absent finality of judgment, it is the notice of appeal – not the passage of time – that removes a trial court’s jurisdiction to revisit its ruling.” Prior to final judgment, the trial court can and should correct its own previous incorrect appealable rulings which a party has not appealed. In fact, the supreme court has held that a trial court retains jurisdiction even after it has entered final judgment: We . . . hold that when a court incorporates a settlement agreement into a final judgment or approves a settlement agreement by order and retains jurisdiction to enforce its terms, the court has the jurisdiction to 16  enforce the terms of the settlement agreement even if the terms are outside the scope of the remedy sought in the original pleadings. Paulucci v. Gen. Dynamics Corp., 842 So. 2d 797, 803 (Fla. 2003) (emphasis added) (footnote omitted). Logically, if a court retains jurisdiction to enforce a settlement agreement after entering final judgment, a court retains jurisdiction to reconsider a previous, appealable order now rendered invalid by intervening precedent or the trial court’s reconsideration of a prior erroneous appealable ruling not appealed by the parties before entering final judgment. And, in fact, the supreme court has long recognized that a trial court has the inherent power and authority to reconsider its interlocutory orders before entering final judgment: “As the District Court held, it is well settled that a trial court has the inherent authority to control its own interlocutory orders prior to final judgment.” N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849, 851 (Fla. 1962) (citation omitted). Logically, the trial court must also possess the power and authority to control its prior appealable decisions not classified as “interlocutory” if the party adversely affected does not appeal that prior decision before the trial court enters final judgment. The principle of law that a trial court retains authority to “control its own interlocutory orders prior to final judgment” does not exclude the trial court’s inherent authority to “control” all its orders prior to final judgment. To hold otherwise leads directly to illogical and unlawful results. If prior to final judgment, a trial court cannot reconsider its own prior appealable decisions, then that trial court could be required to disobey subsequent supreme court precedent merely based on the failure of a party to exercise its right to appeal. For example, assume that a trial court granted a motion for a new trial based on a rule of law which was later overruled by the supreme court. Also, assume that the adversely affected party did not timely appeal that order. Under the illogical proposition in Simmons v. State, 274 So. 3d 468 (Fla. 1st DCA 2019), the trial court is prohibited from reconsidering its prior erroneous order granting the new trial even though that order is now contrary to a binding supreme court decision. See Frazier v. Seaboard RR Inc., 508 So. 2d 345 (Fla. 1987) (holding that orders granting new trial are not 17 interlocutory in nature and are final orders not subject to motion for rehearing, clarifying Bowen v. Williard, 340 So. 2d 110 (Fla. 1976)); Fla. R. App. P. 9.110(a)(3); Philip J. Padovano, 2 Florida Appellate Practice § 23:7 (2019 ed.) *. Other examples of reviewable orders issued during discovery and trial are readily apparent. For example, where a trial court erroneously orders the disclosure of privileged material, such an order is reviewable by the appellate court: We may review an interlocutory order that is not appealable under Florida Rule of Appellate Procedure 9.130 by petition for certiorari only when the petitioner establishes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal. . . . It is well established that “[c]ertiorari review ‘is appropriate in cases that allow discovery of privileged information. Butler v. Harter, 152 So. 3d 705, 709–10 (Fla. 1st DCA 2014) (citations omitted). In Butler, we granted the writ for certiorari to prevent disclosure of confidential work product. And, although a party may not seek extraordinary review due to cost, delay, or other considerations, a party may reiterate to the court that although it does not seek review, the judge’s ruling is error and will cause irreparable harm. Now assume the trial court decides after the time for review has expired that its prior ruling was error—perhaps after researching the matter, reading Butler, or otherwise deciding that its ruling will be a departure from the essential requirements of * Although an order granting a new trial is a nonfinal order, it is reviewable by the procedures that apply to appeals from final orders. Rule 9.110(a)(3) of the Florida Rules of Appellate Procedure includes new trial orders within the class of orders that are appealable under Rule 9.110, and Rule 9.130(a)(4) clarifies this unique classification by stating that “orders granting motions for new trial in jury and non-jury cases are reviewable by the method prescribed in Rule 9.110.” (Emphasis added). 18 law, cause great embarrassment by the disclosure of confidential information, and cannot be remedied on direct appeal. Under Simmons, the trial court is precluded from revisiting its order and reversing itself because the party harmed by the prior order did not seek timely review by this Court. This illogical result is based on the fiction that somehow, the trial court “lost jurisdiction” to reconsider a prior appealable order which a party failed to