State v. Roberts
| Decision Date | 26 October 1995 |
| Docket Number | No. 85909,85909 |
| Citation | 661 So.2d 821 |
| Parties | 20 Fla. L. Weekly S546 STATE of Florida, Petitioner, v. Jeffrey Ely ROBERTS, Respondent. |
| Court | Florida Supreme Court |
Robert A. Butterworth, Attorney General; James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals and Daniel A. David, Assistant Attorney General, Tallahassee, for Petitioner.
Nancy A. Daniels, Public Defender and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Respondent.
ORDER ON MOTION TO RECALL MANDATE
On May 18, 1995, the First District Court of Appeal rendered its opinion reversing Roberts' conviction and remanding for a new trial. The court issued its mandate on June 6, 1995. On June 16, 1995, the State timely filed a notice to invoke the discretionary jurisdiction of this Court predicated upon conflict of decisions. On June 20, 1995, the State filed in the First District Court of Appeal a motion to recall mandate. On July 10, 1995, the First District Court of Appeal denied the motion to recall mandate, specifically stating that pursuant to State v. McKinnon, 540 So.2d 111 (Fla.1989), a party desiring stay of mandate during the pendency of a petition for review in this Court must apply to this Court for the stay. The State has now filed a motion with this Court seeking a stay and requiring the First District Court of Appeal to withdraw its mandate pending disposition of the notice to invoke the discretionary jurisdiction of this Court.
We have chosen to publish this order in order to clarify our opinion in McKinnon. Our opinion in McKinnon contained language indicating that a party desiring a stay of mandate during the pendency of a petition for review in this Court must apply to this Court for a stay. However, the issue in that case was not where the motion for stay should be filed. Rather, the holding in that case was that the pendency of a petition for review in this Court did not deprive the trial court of jurisdiction to resentence a defendant pursuant to the district court's mandate which had reversed and remanded the case for resentencing.
While a motion for stay and to recall a mandate may be filed in this Court, it may also be filed in the district court of appeal. The fact that a notice to invoke the discretionary jurisdiction of this Court has already been filed does not deprive the district court of appeal of jurisdiction to rule upon the motion. This is explained in Florida Rule of Appellate Procedure 9.310(a), which reads as follows:
(a) Application. Except as provided by general law...
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Bryant v. State, 99-0220.
...the mandatory minimum term on Count I. See State v. McKinnon, 540 So.2d 111 (Fla.1989), receded from on other grounds by, State v. Roberts, 661 So.2d 821 (Fla.1995); Helmick v. State, 569 So.2d 869 (Fla. 2d DCA The state argues that the imposition of the mandatory minimum sentence is approp......
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Mitchell v. State
...The proper outcome in this case is suggested by State v. McKinnon, 540 So.2d 111 (Fla.1989), receded from on other grounds, State v. Roberts, 661 So.2d 821 (Fla.1995). McKinnon was charged with second degree murder and convicted of the lesser included offense of manslaughter. Despite McKinn......
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Simms v. State, 4D06-4055.
...of the enhancement to a different count. State v. McKinnon, 540 So.2d 111 (Fla.1989), receded from on other grounds by State v. Roberts, 661 So.2d 821 (Fla.1995); Bryant v. State, 744 So.2d 1225, 1226 (Fla. 4th DCA In response to this court's order to show cause, the state properly concedes......
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Santana v. State, 3D04-1340.
...on the second count of the indictment. State v. McKinnon, 540 So.2d 111 (Fla. 1989), receded from on other grounds, State v. Roberts, 661 So.2d 821 (Fla.1995); Boswell v. State, 544 So.2d 243 (Fla. 3d DCA 1989)(Error for the trial court to infer the requisite finding for enhancement based o......