BICKLEY v. STATE (2025)

Affirmed. See Awolowo v. State, 389 So. 3d 788 (Fla. 1st DCA 2024).^*

I dissent for the reasons expressed in Judge Bilbrey's dissent in Awolowo v. State, 389 So. 3d 788, 800–803 (Fla. 1st DCA 2024). Awolowo departs from our own precedent without first having the full court resolve the issue en banc, rendering it a nullity. The Florida Supreme Court may well end up agreeing with the reasoning in Awolowo, but we cannot validly get ahead of the higher Court by way of a two-to-one panel opinion.

FOOTNOTES

FOOTNOTE.   The dissent posits that Awolowo is a “nullity.” At least twice previously, the dissent has made similar legally incorrect assertions. See, e.g., Parker v. Fla. Dep't of Corr., 403 So. 3d 1020, 1021 (Fla. 1st DCA 2024) (Kelsey, J., dissenting) (calling “recent panel decisions [ ] not valid, binding, or legitimate precedent because they departed from precedent without first obtaining the Court's en banc authorization to do so”; even though this court actually had gone en banc as suggested); Beans v. Beans, 49 Fla. L. Weekly D1929, ––– So. 3d ––––, 2024 WL 4220245 (Fla. 1st DCA Sept. 18, 2024) (Kelsey, J., dissenting from denial of rehearing) (calling “the merits opinion [ ] not legitimate precedent at all, [ ] wrong, and [ ] not binding on any future panel of this Court or on trial courts”). As the majority did in Beans, all we can do is reference the Florida Constitution and the supreme court, both of which support the validity and legitimacy of a decision approved by a majority of one of this court's three-judge panels under the circumstances the dissent purports to describe. See Art. V, § 4(a), Fla. Const. (providing for each appellate case's consideration by three judges of the district court, making “the concurrence of two [ ] necessary to a decision” in the exercise of the court's judicial power); Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958) (recognizing district courts as “primarily of final appellate jurisdiction,” their decisions “in most instances being final and absolute”); Stanfill v. State, 384 So. 2d 141, 143 (Fla. 1980) (“The decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court.”); Weiman v. McHaffie, 470 So. 2d 682, 684 (Fla. 1985) (noting “binding effect” a district court's decision has on “Florida trial courts”); see also Little v. State, 206 So. 2d 9, 10 (Fla. 1968) (noting when two decisions of the same district court conflict, the one “later in point of time [ ] would overrule [the earlier one] as the decisional law”); R.J. Reynolds Tobacco Co. v. Marotta, 214 So. 3d 590, 604 (Fla. 2017) (still recognizing Little as “holding that where intradistrict conflict exists, the decision later in time overrules the former as the decisional law in the district”). We hasten to note that our colleague Judge Bilbrey—whose dissent in Awolowo is now referenced as authority by the current dissent—nevertheless has since followed Awolowo as a valid and legitimate decision of this court. See Hicks v. State, 391 So. 3d 620, 625 (Fla. 1st DCA 2024) (Bilbrey, J., concurring) (“However, although I respectfully disagree with the majority opinion in Awolowo, I believe that I am now bound by it.”).

Per Curiam.

M.K. Thomas and Tanenbaum, JJ., concur; Kelsey, J., dissents with an opinion.