STRONG v. STATE (2020)

BY ORDER OF THE COURT:

Appellant's motion for written opinion is granted. The prior opinion dated May 13, 2020, is withdrawn, and the attached opinion is issued in its place. Appellant's motion to stay the issuance of the mandate is denied. No further motions filed pursuant to Florida Rule of Appellate Procedure 9.330 will be entertained.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

MARY ELIZABETH KUENZEL, CLERK

Anthony Strong seeks a written opinion of this court's per curiam affirmance that was issued without a written opinion. The order on appeal is affirmed, and we address only the concerns raised by Strong in the motion for written opinion.

In 1991, Strong was convicted of first-degree felony murder (count one) and attempted robbery with a firearm (count two) following a jury trial. He was sentenced to life imprisonment with the possibility of parole after twenty-five years on count one and to fifteen years' imprisonment with a three-year mandatory minimum term on count two. Strong was sixteen when he committed the crimes. In 2016, Strong filed a Florida Rule of Criminal Procedural 3.800(a) motion arguing that he was entitled to be resentenced pursuant to Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Atwell v. State, 197 So. 3d 1040 (Fla. 2016). The trial court granted the motion, and the State did not appeal that ruling. Almost two years later, the resentencing still had not occurred and the State filed a motion to dismiss or for summary denial of Strong's motion for resentencing. The trial court determined that since Atwell was no longer good law in light of Franklin v. State, 258 So. 3d 1239 (Fla. 2018), and State v. Michel, 257 So. 3d 3 (Fla. 2018), Strong was no longer entitled to be resentenced. The trial court therefore entered an order granting the State's motion.

On appeal, Strong challenges the order granting the State's motion, arguing in pertinent part that the trial court lacked jurisdiction to reconsider its prior ruling regarding his motion for resentencing. For the reasons expressed in Morgan v. State, 293 So.3d 1081 (Fla. 2d DCA 2020), we affirm. We also certify conflict with Magill v. State, 287 So. 3d 1262 (Fla. 5th DCA 2019), Jones v. State, 279 So. 3d 172 (Fla. 4th DCA 2019), and the cases which rely upon Jones to conclude that orders granting rule 3.800(a) motions are appealable by the State prior to resentencing and that where no appeal is taken the trial court loses jurisdiction to reconsider its ruling.¹

Affirmed; conflict certified.

FOOTNOTES

1.   In Morgan, this court also certified conflict with Simmons v. State, 274 So. 3d 468 (Fla. 1st DCA 2019), and Jordan v. State, 81 So. 3d 595 (Fla. 1st DCA 2012). However, on May 1, 2020, the First District receded from those decisions. See Rogers v. State, 296 So.3d 500, 511 (Fla. 1st DCA 2020) (en banc) (“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).”); see also Baldwin v. State, 297 So.3d 678, 678 (Fla. 1st DCA 2020).

PER CURIAM.

KHOUZAM, C.J., and VILLANTI and BLACK, JJ., Concur.