Mitchell v. State
| Decision Date | 02 September 2009 |
| Docket Number | No. 2D05–2852.,2D05–2852. |
| Citation | 160 So.3d 902 |
| Parties | Willie Brooks MITCHELL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Siobhan Helene Shea, Special Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellee.
ORDER DENYING APPELLANT'S DEMAND TO REISSUE MANDATE
The issue addressed by this opinion arises because the Florida Supreme Court's decision in State v. Powell, 998 So.2d 531 (Fla.2008), is pending in the United States Supreme Court and a decision in that case is not expected for at least six months. The issue appears to be a matter of first impression and is also likely to be an issue that arises with great infrequency. Nevertheless, it is a significant issue concerning the power of a district court of appeal.
Can a district court exercise its discretion to recall mandate and stay proceedings in a criminal case when the dispositive issue in the case is on review in the United States Supreme Court? We conclude that so long as the State asks this court to recall mandate and stay the case during our term of court and during the period in which the State could have filed for review in the U.S. Supreme Court, we have discretion to recall the case and return it to the pipeline of similar cases awaiting the outcome of the U.S. Supreme Court. Accordingly, we deny Mr. Mitchell's demand that we reissue mandate.
On February 24, 1997, an intruder entered the home of an elderly woman to commit a burglary. The woman testified that she awoke from her sleep and went to investigate the sounds that she heard. When she discovered the intruder, he attacked her and stabbed her fourteen times. She survived but could not identify her attacker.
Mr. Mitchell was not immediately identified as a suspect. He was questioned by detectives in July 2003 while he was an inmate in the Florida prison system. After receiving his Miranda1 warnings from a standard interview form, he confessed to this crime. Except for his confession, the best evidence suggesting that he may have been the intruder was DNA found on a piece of broken window glass on the exterior of the house.
Mr. Mitchell was convicted by a jury of attempted second-degree murder and armed burglary of a dwelling. He was sentenced to life in prison. On December 14, 2007, this court reversed his judgments and sentences, ruling that his confession was inadmissible because of a deficiency in the Miranda warning. See Mitchell v. State, 2 So.3d 287, 289 (Fla. 2d DCA 2007). As that opinion explained, our holding was compelled by this court's recent decision in Powell v. State, 969 So.2d 1060 (Fla. 2d DCA 2007), approved, 998 So.2d 531 (Fla.2008). We certified the same question of great public importance that had been certified in Powell. Mitchell, 2 So.3d at 289.
The State moved this court to stay the issuance of mandate while it sought review in the Florida Supreme Court. We granted that stay and the State filed the appropriate notice in the supreme court. The supreme court took no action on this case, essentially leaving it in the pipeline as it considered the identical issue in Powell.
The Florida Supreme Court issued its opinion in Powell in September 2008, affirming this court's decision that the standard form Miranda warning was deficient. 998 So.2d at 542. It denied a motion for rehearing in December. Id. at 531. In January 2009, it issued a similar decision, reversing a judgment and sentence of death. Rigterink v. State, 2 So.3d 221 (Fla.2009).
On March 3, 2009, the supreme court denied review in Mr. Mitchell's case. State v. Mitchell, 6 So.3d 53 (Fla.2009) (table decision). On that same day, it declined to recall mandate and stay proceedings in Rigterink while the State sought review in the U.S. Supreme Court. See Order Denying Appellee's Motion to Recall and Stay Issuance of Mandate, Rigterink v. State, No. SC05–2162 (Fla. Mar. 4, 2009). On March 11, 2009, this court issued mandate in Mr. Mitchell's case.
A week later, the State filed its petition seeking certiorari review in the U.S. Supreme Court in Powell. Petition for Writ of Certiorari, Florida v. Powell, 77 U.S.L.W. 3559 (U.S. Mar. 19, 2009) (No. 08–1175 ). On March 25, 2009, the U.S. Supreme Court entered a stay in Rigterink in order to give the State an opportunity to seek review. Florida v. Rigterink, 556 U.S. 1149, 129 S.Ct. 1667, 173 L.Ed.2d 1034 (2009). Then, on April 2, 2009, it granted a stay in Powell pending disposition of the State's petition for certiorari review. Florida v. Powell, 556 U.S. 1162, 129 S.Ct. 1693, 173 L.Ed.2d 1054 (2009).2
In light of these developments, the State filed a motion in April 2009 requesting this court to recall its mandate and stay proceedings pending disposition of Powell in the U.S. Supreme Court. This motion was filed during the period in which the State could have sought review in Mr. Mitchell's case in the U.S. Supreme Court, although the motion to recall mandate did not represent that the State intended to file for such review.
On May 5, 2009, this court granted that motion, recalling the mandate. When the mandate was recalled, this court assumed that either it would reissue mandate if the U.S. Supreme Court declined jurisdiction or upheld the Florida Supreme Court's decision, or that it would issue a revised opinion in line with the U.S. Supreme Court's decision if the U.S. Supreme Court reversed the Florida Supreme Court's decision. Mr. Mitchell did not file any objection to the recall of mandate at that time. Thereafter, the State did not file a petition for certiorari in the U.S. Supreme Court, presumably because this court had stayed proceedings pending the outcome in Powell.
The duty to issue mandate is a duty fulfilled by the clerk of the court. See Fla. R.App. P. 9.340. In July 2009, the clerk questioned whether the three judges assigned to a specific case had the authority to enter an order recalling mandate or preventing the issuance of mandate when no further proceedings were actually pending in either the Florida Supreme Court or the U.S. Supreme Court. Florida Rule of Appellate Procedure 9.310 provides for stays “pending review,” and the clerk questioned whether the court had the authority to withhold the issuance of mandate under rule 9.340(a) in the absence of a pending motion for rehearing in this court or a pending review proceeding in a higher court. Although this court has held that it has discretion in a criminal case to stay or withdraw mandate when the State announces its intention to seek review in the Florida Supreme Court,3 we have not addressed our authority in this unusual procedural context, and the issue does not appear to be resolved by existing precedent. Accordingly, it was entirely appropriate for the clerk to raise the question of whether the court was required to issue mandate at this time.
As a result of the clerk's concern, we ordered memoranda from the parties. The State argues that we should continue to withhold the issuance of mandate, whereas Mr. Mitchell demands that this court issue mandate forthwith. As announced earlier in this opinion, we decline to reissue mandate at this time.
We agree that, as a general rule, the clerk of this court is required to issue mandate at the time specified in the Florida Rules of Appellate Procedure. See Fla. R.App. P. 9.340. While the clerk's duty in this respect is undoubtedly ministerial, in State v. Miyasato, 805 So.2d 818, 825 (Fla. 2d DCA 2001), this court held that the judges' power in a criminal case to withhold the issuance of mandate in order to allow the State to seek review in the Florida Supreme Court was an act involving discretion. Rule 9.340 provides that the clerk is obligated to issue mandate after the expiration of fifteen days from either the date a decision is issued or the date that rehearing is resolved “[u]nless otherwise ordered by the court.” See Fla. R.App. P. 9.340(a). Thus, the judges of this court have the power, at least in some circumstances, to control the issuance of mandate by special order.
In this case, the panel initially stayed mandate while the State sought review in the Florida Supreme Court. The panel granted a stay only to that extent. Once proceedings concluded in the Florida Supreme Court and it declined to accept jurisdiction, the clerk properly issued mandate as a ministerial duty without seeking any special permission or authorization from the judges of this court.
The power of the judges to withdraw or recall mandate once it has been issued, however, is a more complex issue, as discussed in Miyasato. There is no question that judicial process values both finality and quality. The issuance of mandate is a step toward finality. However, in Florida and other jurisdictions that still recognize a “term of court,” the finality of a mandate is cushioned by the discretion to recall mandate during the term of court in which it is issued. See Pinecrest Lakes, Inc. v. Shidel, 802 So.2d 486 (Fla. 4th DCA 2001). Thus, it is well established that the judges of a court have the power to recall a mandate so long as they take that action within the term of court. See State Farm Mut. Auto. Ins. Co. v. Judges of Dist. Court of Appeal, Fifth Dist., 405 So.2d 980, 982 (Fla.1981).
As Judge Farmer explained in Pinecrest Lakes:
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