State Of Florida v. Jerome T. Bell
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Supreme Court of Florida
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No. SC07-451
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STATE OF FLORIDA,
Petitioner,
vs.
JEROME T. BELL,
Respondent.
[May 29, 2008]
REVISED OPINION
PER CURIAM.
We hereby grant respondent Jerome T. Bell’s motion to withdraw this
Court’s opinion, withdraw our previous opinion issued in this case, see State v.
Bell, 32 Fla. L. Weekly S709 (Fla. Nov. 8, 2007), and issue the following
substituted opinion in its place.
We have for review Bell v. State, 32 Fla. L. Weekly D476 (Fla. 2d DCA
Feb. 16, 2007), in which the Second District Court of Appeal acknowledged (but
did not certify) conflict with Reeves v. State, 920 So. 2d 724 (Fla. 5th DCA 2006),
approved, 957 So. 2d 625 (Fla. 2007), cert. denied, 128 S. Ct. 537 (2007). At the
time the Second District Court issued its decision in Bell, Reeves was pending
review in this Court. We have jurisdiction. See art V, § 3(b)(3), Fla. Const.; Jollie
v. State, 405 So. 2d 418 (Fla. 1981).
The Second District Court below affirmed in part and reversed in part Bell’s
sentences. See Bell, 32 Fla. L. Weekly at D476. Both parties sought relief, Bell
via a rehearing motion filed in the Second District Court and the State via a notice
to invoke discretionary review filed in this Court. We stayed proceedings in this
Court pending disposition of Bell’s rehearing motion in the Second District Court,
directing counsel to file status reports with this Court every thirty days. The State
subsequently advised this Court that the Second District Court had denied
rehearing, and Bell replied that the Second District Court had additionally granted
his voluntary dismissal motion filed in that court in the interim. Significantly,
however, neither party filed a dismissal motion in this Court, and there was no
indication that the Second District Court had withdrawn its Bell opinion. This
Court thus proceeded to issue an order staying the present case pending disposition
in Reeves. Neither party objected to or otherwise questioned that stay order.
After Reeves was decided, we issued an order directing Bell to show cause
why we should not accept jurisdiction, quash the Second District Court’s Bell
decision, and remand for reconsideration in light of our decision in Reeves. In his
response, Bell conceded that “there is no reason for this Court not to take the
actions contemplated in its order,” and the State did not file a reply or in any way
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suggest otherwise. We thus originally issued our now-withdrawn opinion granting
the petition for review in the present case, quashing the decision under review, and
remanding to the Second District Court for reconsideration upon application of this
Court's decision in Reeves. See Bell, 32 Fla. Law Weekly at S709. Neither party
filed a motion for rehearing, so our mandate issued as a matter of course several
weeks later on December 6, 2007.
Only then, on December 17, 2007, did Bell file a motion to withdraw this
Court’s mandate; a motion for this Court to expedite ruling on the motion to
withdraw mandate due to concerns regarding the looming expiration of our July
term of court; 1 a motion to withdraw this Court’s opinion; and a motion for this
Court to dismiss the case. All four motions were based on the fact that over eight
months earlier, the Second District Court had granted Bell’s voluntary dismissal
motion below. By order issued December 19, 2007, we granted Bell’s motion to
withdraw mandate (and accordingly denied his motion to expedite) in order to
consider his motion to withdraw opinion and motion to dismiss case. See State
Farm Mut. Auto. Ins. Co. v. Judges of the District Court of Appeal, Fifth District,
405 So. 2d 980, 982-83 (Fla. 1981) (“An appellate court’s power to recall its
mandate is limited to the term during which it was issued.”). In that same order,
1. See § 25.051, Fla. Stat. (2007) (providing that this Court “shall hold two
terms in each year, . . . commencing respectively on the first day of January and
July”).
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we deferred ruling on those two remaining motions and directed the State to file a
response thereto.
We have herein already granted the motion to withdraw this Court’s opinion,
leaving only the motion for this Court to dismiss the case, which we hereby deny.
Such dismissal is not an option at this point, as it would untenably allow to stand
the Second District Court’s Bell opinion, which is at odds with both that court’s
subsequent dismissal of the case and this Court’s Reeves decision. We instead
grant the petition for review in this case and quash the Second District Court’s Bell
opinion below, thereby nullifying that opinion and allowing the Second District
Court’s dismissal to stand undisturbed. Remand is accordingly rendered
unnecessary.
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and
BELL, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict
Second District - Case No. 2D04-1313
(Polk County)
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Bill McCollum, Attorney General, Tallahassee, Florida, and Robert J. Krauss,
Assistant Attorney General, Bureau Chief, and Chandra Waite Dasrat, Assistant
Attorney General, Tampa, Florida,
for Petitioner
James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant
Public Defender, Tenth Judicial Circuit, Bartow, Florida,
for Respondent
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