IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-443
Filed: 5 April 2016
Buncombe County, Nos. 04 CRS 53624; 04 CRS 7096
STATE OF NORTH CAROLINA
v.
RAYMOND WATKINS
Appeal by defendant by writ of certiorari from order entered 24 January 2014
by Judge Gary Gavenus in Buncombe County Superior Court. Heard in the Court of
Appeals 6 October 2015.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde,
for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Hannah
H. Love and Assistant Appellate Defender Daniel Shatz, for defendant-
appellant.
CALABRIA, Judge.
Raymond Watkins (“defendant”) appeals by writ of certiorari from an order
entered upon remand after a decision of this Court reversing his first sentence. See
State v. Watkins, 229 N.C. App. 628, 747 S.E.2d 907 (2013) (“Watkins II”). In Watkins
II, this Court concluded that the record was inadequate to address defendant’s
threshold jurisdictional challenge, elected not to address defendant’s remaining
challenges, and remanded for a de novo sentencing hearing in accordance with this
Court’s holding in State v. Degree, 110 N.C. App. 638, 641, 430 S.E.2d 491, 493 (1993).
STATE V. WATKINS
Opinion of the Court
On remand, after the trial court held an evidentiary hearing on the issue of
jurisdiction, it concluded the court had jurisdiction to sentence defendant and
reinstated the sentence this Court reversed in Watkins II. Because the trial court
failed to conduct a de novo resentencing on remand, we vacate the sentence and
remand for resentencing.
I. Background
The following procedural and factual history is taken from this Court’s opinion
in Watkins II:
On 15 November 2004, defendant pled guilty to financial
card theft and having attained habitual felon status.
Pursuant to a plea agreement, prayer for judgment was
continued to 24 January 2005; by consent of both parties it
was continued again until 23 January 2006; and, for
reasons that are unclear from the record, it was postponed
and rescheduled no less than five more times in 2006. In
the interim, defendant was dealing with several federal
criminal matters: in April 2005 he was arrested for a
federal probation violation and sentenced to a year in
federal custody, and in June 2006 he was convicted for
possession of a firearm by a felon and sentenced to sixty
months in federal prison. Ultimately, defendant was not
sentenced in this case until 5 February 2007, more than a
year after the date to which sentencing was last continued.
At the 5 February 2007 sentencing hearing, defendant
contended the trial court was divested of jurisdiction to
sentence him because of the lengthy delay. The State
responded by speculating that the delay was caused by
difficulties transferring defendant from the federal prison
system to state court for a hearing. Without further
discussion of the issue, the trial court found “in its
discretion” that it did have jurisdiction to pronounce a
sentence. It then sentenced defendant to a minimum of 64
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Opinion of the Court
and a maximum of 85 months imprisonment, the sentence
to run concurrently with the federal sentence defendant
was serving at the time.
The State appealed, and in an opinion filed 3 March 2008
this Court held the sentence was erroneous because the
penalty imposed fell below the statutory minimum and
because the trial court imposed a concurrent sentence of
imprisonment when a consecutive one was required by
N.C. Gen. Stat. § 14–7.6. See State v. Watkins, 189 N.C.
App. 784, 659 S.E.2d 58 (2008). While defendant again
raised the issue of jurisdiction in his appellee’s brief, he did
not cross-appeal and this Court did not address the issue
of jurisdiction in its opinion. Id.
After the sentence was vacated and remanded by this
Court, a re-sentencing hearing was held on 3 July 2008.
Defendant again challenged the trial court’s jurisdiction to
pronounce a sentence, and the trial court again overruled
defendant’s objection-this time on grounds that the trial
court was reluctant to contradict the original trial judge’s
finding on jurisdiction and that it was “clothed with
jurisdiction by the appellate order.” Because he was
convicted of a class C felony[] with a prior record level IV,
defendant was sentenced to imprisonment for a minimum
term of 80 months and a maximum term of 105 months.
Defendant gave oral notice of appeal at the close of the re-
sentencing hearing.
Watkins II, 229 N.C. App. at 628–29, 747 S.E.2d at 908–09.
Although defendant gave oral notice of appeal on 3 July 2008,
apparently due to an administrative oversight, the trial
court did not complete defendant’s appellate entries until
more than four years later, on 13 September 2012.
On 1 April 2013, defendant filed a petition for writ of
certiorari in this Court “to permit appellate review of the
July 3, 2008 Judgment and Commitment because
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Opinion of the Court
[defendant] has lost his right to prosecute an appeal by
failure to take timely action due to no fault of his own.” The
State responded on 9 April 2013 and filed a motion to
dismiss the appeal pursuant to N.C.R. App. P. 25(a),
arguing defendant failed to timely “take any action
required to present the appeal for decision.”
Id. at 630, 747 S.E.2d at 909.
The Watkins II Court allowed defendant’s petition and denied the State’s
motion to dismiss on the grounds that “it would be inappropriate to punish defendant
for what was clearly an oversight on the part of the trial court in failing to file the
appellate entries despite defendant’s notice of appeal.” Id.
On appeal in Watkins II, defendant argued, inter alia, that the trial court
“lacked jurisdiction to sentence defendant because the State failed to move for
imposition of the sentence within a reasonable time after the last date to which prayer
for judgment was continued.” Id. This Court concluded that “the record in this case
lacks the information necessary for this Court to properly consider defendant’s
objection to the trial court’s jurisdiction.” Id. at 634, 747 S.E.2d at 912. As a result,
the Watkins II Court reversed the trial court’s judgment and “remanded for a de novo
sentencing hearing so the trial court may have an opportunity to take evidence and
make findings relevant to this issue.” Id.
On remand from Watkins II, a hearing was held where the trial court accepted
evidence and heard arguments of counsel regarding the issue of jurisdiction. After
the hearing, the trial court determined: (1) the delay in sentencing was justified by
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Opinion of the Court
defendant’s incarceration in federal prison; (2) “[t]here is no evidence except pure
conjecture” that if defendant were brought to Buncombe County in January 2006 and
sentenced before the federal conviction, the federal government might have permitted
his federal sentence to run concurrent with this State sentence; and (3) the trial court
had jurisdiction to enter a judgment against defendant on 5 February 2007 and an
amended judgment on 3 July 2008. Subsequently, the trial court elected not to
conduct a resentencing hearing. Rather, in its written order the trial court concluded:
[T]he sentence of not less than 80 months and not more
than 105 months entered on July 3, 2008 by the Hon.
James Baker is a legal sentence that the Court had
jurisdiction to impose, and continues to be in force and
effect.
Defendant appeals.
II. Jurisdiction
As an initial matter, defendant contends that he has a right to appeal the trial
court’s order pursuant to N.C. Gen. Stat. § 7A-27(b). We disagree.
N.C. Gen. Stat. § 7A–27(b) governs appeals of right. This Court has explained:
[S]ection 7A–27(b) explicitly excludes from its right of
appeal those cases where a final judgment is entered based
on a guilty plea. See N.C. Gen. Stat. § 7A–27 (b)(1) (2013);
State v. Mungo, 213 N.C. App. 400, 401, 713 S.E.2d 542,
543 (2011) (“N.C. Gen. Stat. § 7A–27(b) does not provide a
route for appeals from guilty pleas.”).
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Opinion of the Court
State v. Sale, 232 N.C. App. 662, 664–65, 754 S.E.2d 474, 477 (2014). However, a
defendant who enters a guilty plea “may petition the appellate division for review by
writ of certiorari.” N.C. Gen. Stat. § 15A-1444(e) (2015).
In this case, defendant entered a guilty plea to a felony. In Watkins II,
defendant argued, inter alia, the trial court lacked jurisdiction to sentence him based
on the delay between his guilty plea and the entry of judgment. This Court found the
record insufficient to address defendant’s jurisdictional challenge and, on this
ground, reversed defendant’s sentence and remanded for “a de novo sentencing
hearing” without specifying the procedure to review the judgment. On remand,
during the trial court’s hearing, evidence was presented on the issue of jurisdiction.
By order entered 23 January 2014, the trial court concluded it had jurisdiction to
enter judgment and ruled the 3 July 2008 sentence was a legal sentence and
continues to be in effect.
Because this Court did not state the procedure for review, because the trial
court did not enter an appealable order, and because defendant did not seek entry of
such an order by mandamus, it appears defendant is not entitled to appeal as a
matter of right. However, defendant has petitioned this Court for review by
certiorari. N.C. Gen. Stat. § 15A-1444(e). Furthermore, this Court has jurisdiction
to issue extraordinary writs “to supervise and control the proceedings of any of the
trial courts of the General Court of Justice[.]” N.C. Gen. Stat. § 7A-32(c) (2015).
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Opinion of the Court
In our discretion, we granted defendant’s petition for writ of certiorari. For
purposes of this appeal and to provide defendant with an avenue for further review,
we conclude the trial court’s 23 January 2014 order reinstating the 3 July 2008
judgment should be treated as a final judgment imposing a sentence of a minimum
of 80 months to a maximum of 105 months, nunc pro tunc, as of 3 July 2008. Our
review of the trial court’s 23 January 2014 order will be treated as a final judgment
entered against defendant from which he has a right to appeal as provided in N.C.
Gen. Stat. § 15A-1444(e).
III. Analysis
A. The Mandate Rule and Scope of Remand
Defendant contends that the trial court erred by failing to follow the Watkins
II Court’s mandate and hold a resentencing hearing on remand after addressing
defendant’s jurisdictional challenge. Specifically, defendant argues the trial court
“had a legal duty to make the required jurisdictional findings, and, if jurisdiction was
found, to conduct a de novo sentencing hearing.” [Def br p. 15] The State contends
that the trial court properly followed this Court’s mandate, because the case was
“remanded for an evidentiary hearing—which [the Watkins II Court] called ‘a de novo
hearing’—at which the trial court was directed to make certain findings regarding
the Degree factors.” According to the State, “[b]y conducting an evidentiary hearing
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Opinion of the Court
and making the required findings, the trial court complied with this Court’s
mandate.” We disagree.
Although this issue has never been answered directly, this Court’s
interpretation of its own mandate is properly considered an issue of law reviewable
de novo. See, e.g., Laitram Corp. v. NEC Corp., 115 F.3d 947, 950 (Fed. Cir. 1997)
(“We give much weight to the uniform treatment of other types of decrees and
judgments by trial courts as reviewed de novo. Since here we interpret our own, not
a trial court’s order, it seems all the clearer that no deference is due.”) (citations
omitted). “ ‘On the remand of a case after appeal, the mandate of the reviewing court
is binding on the lower court, and must be strictly followed, without variation and
departure from the mandate of the appellate court.’ ” Bodie v. Bodie, __ N.C. App. __,
__, 768 S.E.2d 879, 881 (2015) (quoting Collins v. Simms, 257 N.C. 1, 11, 125 S.E.2d
298, 306 (1962)). “[I]t is well-established that in discerning a mandate’s intent, the
plain language of the mandate controls.” In re Parkdale Mills, __ N.C. App. __, __,
770 S.E.2d 152, 156 (citation omitted), disc. review denied, 776 S.E.2d 200 (2015). “
‘[D]e novo’ means fresh or anew; for a second time;” and a de novo hearing in a
reviewing court is a new hearing, as if no action had been taken in the court below.
In re Hayes, 261 N.C. 616, 622, 135 S.E.2d 645, 649 (1964).
It is well established that remands may be general or limited in scope. In
Pepper v. United States, 562 U.S. 476 (2011), the United States Supreme Court
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Opinion of the Court
acknowledged the distinction made by federal courts of appeal between general and
limited resentencing remands. Although resentencing remands in our State are
typically de novo and are properly classified general remands, see, e.g., State v.
Morston, 221 N.C. App. 464, 469, 728 S.E.2d 400, 405 (2012) (citations omitted),
decisions by our State’s courts provide little guidance on interpreting mandates
remanding cases for resentencing. However, limited and general remands for
resentencing have been addressed in several federal courts of appeal. See United
States v. Quintieri, 306 F.3d 1217, 1228 n.6 (2d Cir. 2002) (noting that “[t]he circuits
are divided as to whether a remand for resentencing should be limited or de novo
absent explicit direction from the remanding court. The Sixth, Eighth, Ninth, Tenth,
and Eleventh Circuits follow a de novo sentencing default rule.” . . . “The D.C., First,
Fifth, and Seventh Circuits follow a default rule of limited resentencing.”) (citations
omitted). We find it appropriate to look to these cases as persuasive authority in
order to enlighten and guide our inquiry. See, e.g., Ellison v. Alexander, 207 N.C.
App. 401, 405, 700 S.E.2d 102, 106 (2010) (citations omitted) (“Although we are not
bound by federal case law, we may find their analysis and holdings persuasive.”).
In the context of resentencing remands, the Sixth Circuit explained:
If a remand is general, the district court can resentence the
defendant de novo, which means the district court may
redo the entire sentencing process including considering
new evidence and issues. When the remand is not general,
the district court's resentencing authority is limited to the
issue or issues remanded.
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Opinion of the Court
United States v. O'Dell, 320 F.3d 674, 679 (6th Cir. 2003) (citations, quotation marks,
and brackets omitted). The Sixth Circuit’s default rule guides this Court in
interpreting resentencing remands:
The key is to consider the specific language used in the
context of the entire opinion or order. However, in the
absence of an explicit limitation, the remand order is
presumptively a general one.
United States v. Campbell, 168 F.3d 263, 267–68 (6th Cir. 1999) (citation omitted).
The de novo sentencing default rule comports with well-established precedent of this
State. See, e.g., State v. Paul, 231 N.C. App. 448, 449, 752 S.E.2d 252, 253 (2013)
(“Should this Court find a sentencing error and remand a case to the trial court for
resentencing, that hearing shall generally be conducted de novo.”) (citations omitted).
We further find the Sixth Circuit’s logic underlying this presumption most
persuasive:
The goal of achieving judicial economy through the use of
limited remands becomes futile if appellate court drafting
imprecision too frequently results in parties appealing the
scope of the remand itself. The purpose of the opinion and
order is to inform and instruct the district court and the
parties and to outline the future intended chain of events.
It is the job of the appellate court adequately to articulate
instructions to the district court in the remand.
Consequently, to impose a limited remand, an appellate
court must sufficiently outline the procedure the district
court is to follow. The chain of intended events should be
articulated with particularity. With sentencing issues, in
light of the general principle of de novo consideration at
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Opinion of the Court
resentencing, this court should leave no doubt in the
district judge’s or parties’ minds as to the scope of the
remand. The language used to limit the remand should be,
in effect, unmistakable.
United States v. Campbell, 168 F.3d 263, 267–68 (6th Cir. 1999).
We agree that, especially in the context of resentencing remands, “[a] limited
remand must convey clearly the intent to limit the scope of the district court’s review.”
Campbell, 168 F.3d at 267. Indeed, limited remands by this Court typically follow
this well-established principle. See, e.g., State v. Neal, 210 N.C. App. 645, 709 S.E.2d
463, 464 (2011) (“We, therefore, remand to the trial court for the limited purpose of
making the necessary findings of fact and reconsidering its conclusions of law in light
of those findings.”); State v. McCormick, 204 N.C. App. 105, 114, 693 S.E.2d 195, 200
(2010) (“We therefore remand the matter to the trial court for the limited purpose of
correcting the file number on the judgment sentencing for the purposes of “making
the record speak the truth.’ ”).
B. Watkins II Contained a General Resentencing Remand
It is well established in this State that “each sentencing hearing in a particular
case is a de novo proceeding.” Abbott, 90 N.C. App. at 751, 370 S.E.2d at 69 (citing
State v. Jones, 314 N.C. 644, 336 S.E.2d 385 (1985)); State v. Daye, 78 N.C. App. 753,
756, 338 S.E.2d 557, 560 (“[T]he resentencing court must take its own look at the
evidence[.]”), aff'd per curiam, 318 N.C. 502, 349 S.E.2d 576 (1986); State v. Mitchell,
67 N.C. App. 549, 551, 313 S.E.2d 201, 202 (1984) (“For all intents and purposes the
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Opinion of the Court
resentencing hearing is de novo as to the appropriate sentence.”). “A trial court's
resentencing of a defendant to the same sentence as a prior sentencing court is not
ipso facto evidence of any failure to exercise independent decision-making or conduct
a de novo review.” Morston, 221 N.C. App. at 470, 728 S.E.2d at 406 (citation
omitted). However, when a trial court relies on a previous court’s sentence
determination and fails to conduct its own independent review of the evidence, a
defendant is deprived of a de novo sentencing hearing. Abbott, 90 N.C. App. at 751–
52, 370 S.E.2d at 69–70.
In Watkins II, defendant challenged the trial court’s jurisdiction to sentence
him in 2007 and again in 2008. This Court explained sentencing jurisdiction as
follows:
Once a guilty plea is accepted in a criminal case, a trial
court may continue the case to a subsequent date for
resentencing. A continuance of this type vests a trial judge
presiding at a subsequent session of court with the
jurisdiction to sentence a defendant for crimes previously
adjudicated. . . . [W]e have held that the State’s failure to
[move for imposition of a sentence] within a reasonable
time divests the trial court of jurisdiction to grant the
motion. . . . We have previously noted several factors
relevant to determining whether sentencing has been
continued for “an unreasonable period,” such as “the reason
for the delay, the length of the delay, whether defendant
has consented to the delay, and any actual prejudice to
defendant which results from the delay.” Degree, 110 N.C.
App. at 641, 430 S.E.2d at 493.
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Opinion of the Court
Watkins II at 631, 747 S.E.2d at 910 (some citations and quotation marks omitted).
Because the Watkins II Court concluded that the record was insufficient to address
defendant’s threshold jurisdictional challenge in light of Degree, it reversed
defendant’s sentence and ordered the case be remanded for resentencing, without
addressing defendant’s remaining challenges.
On remand from Watkins II, after the trial court held an evidentiary hearing
to address the Degree factors and concluded the trial court had jurisdiction to
sentence defendant previously, the trial court elected not to conduct a de novo
resentencing. Rather, the trial court reinstated the previously reversed sentence.
The trial judge’s own words clearly showed that he believed he was constrained by
this Court’s mandate in Watkins II from conducting a de novo sentencing hearing.
After the trial court ruled on the jurisdictional issue, the prosecutor stated: “I believe
we’ll have to go through a resentencing now, your Honor. Looking at the appellate
opinion, it talks about other issues that the defendant had raised at the time.” The
trial court disagreed:
I’m not so sure about that. . . . I thought the Court of
Appeals was just indicating that the only issues to be
decided by this Court at this hearing were whether the
delay in the sentencing of the defendant had any valid
justification tied to his incarceration in federal prison in
2005 and 2006 and whether that incarceration hampered
the State’s ability to sentence the defendant in North
Carolina court, whether he consented to the delay in
sentencing by failing to request sentencing on or about
January 23rd and whether he was, in fact, prejudiced.
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Opinion of the Court
The trial court’s written order demonstrates he interpreted our remand as a
limited one: “This matter came before the Court on remand from the North Carolina
Court of Appeals for determination whether the Court had jurisdiction to sentence
Defendant.” We interpret our mandate differently.
In its written opinion, the Watkins II Court ordered, on four separate occasions,
that the case be remanded for resentencing due to its inability to address defendant’s
threshold jurisdictional challenge:
Because we hold the trial court’s findings on the threshold
issue of jurisdiction were insufficient and remand for a de
novo re-sentencing hearing to allow for findings on that
issue, we do not address defendant’s remaining arguments.
....
Nevertheless, there are insufficient facts in the record for
this Court to weigh the remaining three factors we
considered in Degree. Thus, we must remand for a de novo
sentencing hearing.
....
We therefore remand this case for a de novo sentencing
hearing in accordance with this Court’s holding in Degree,
110 N.C. App. at 641, 430 S.E.2d at 493, so the trial court
can properly consider the jurisdictional issue raised by
defendant.
....
Therefore, the trial court’s judgment must be reversed and
this case remanded for a de novo sentencing hearing so the
trial court may have an opportunity to take evidence and
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Opinion of the Court
make findings relevant to this issue.
Watkins II at 630–34, 747 S.E.2d at 909–12 (emphases added). In addition, we
specifically ordered that the trial court take evidence on the Degree factors:
[T]he trial court should take evidence and make findings
on (1) whether the delay in sentencing defendant had any
valid justification tied to defendant’s incarceration in
federal prison in 2005 and 2006—for instance, whether his
federal incarceration hampered the State’s efforts to
sentence defendant in North Carolina court; (2) whether
defendant consented to the delay in sentencing by failing
to request sentencing on or around 23 January 2006,
compare Degree, 110 N.C. App. at 641–42, 430 S.E.2d at
493 (stating that a defendant’s failure to request
sentencing on the last date to which prayer for judgment is
continued is “tantamount to his consent to a continuation
of the sentencing hearing beyond that date.”), with Lea, 156
N.C. App. at 181, 576 S.E.2d at 133 (“a prayer for judgment
may not be continued over the defendant’s objection.”
(citation and quotation marks omitted)); and (3) whether
defendant was in fact prejudiced. Without further factual
findings from the trial court on these questions, any
attempt by this Court to conclusively decide whether the
trial court was stripped of jurisdiction due to an
“unreasonable” delay in sentencing would be based on pure
speculation.
Id. at 633–34, 747 S.E.2d at 911–12. However, we never explicitly limited the scope
of remand to just the jurisdictional issue.
Turning to the plain language of our mandate, we ordered a de novo sentencing
hearing four times and concluded “the trial court’s judgment must be reversed.”
Watkins II at 634, 747 S.E.2d at 912. However, we recognize that the mandate must
be construed in the context of the entire opinion and reasoning underlying the
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remand. We acknowledge that the jurisdictional issue was the sole reason we
remanded the case and that our remand order referenced jurisdiction and the Degree
factors three of the four times we ordered resentencing. In addition, we acknowledge
that defendant’s jurisdictional challenge was only one of four arguments he raised on
appeal and, according to our mandate, the trial court was specifically instructed to
take evidence for findings on the Degree factors without any other explicit instruction.
However, neither the language of our previous order instructing the court to take
evidence on the jurisdictional issue at resentencing nor the language remanding the
case for resentencing in light of Degree expresses any limitation on the trial court’s
authority to conduct a de novo resentencing.
Furthermore, in Watkins II, defendant raised three additional arguments that
went unaddressed. Having concluded the issue of jurisdiction required remand for
resentencing, this Court elected to “not address defendant’s remaining arguments[,]”
presumably assuming those arguments might be resolved on remand. If certain
issues defendant raised on appeal might be cured on remand, it is judicially inefficient
to decide them. See, e.g., State v. English, 171 N.C. App. 277, 281, 614 S.E.2d 405,
408 (2005) (“Defendant makes two additional arguments for resentencing.” . . .
“However, because we remand for resentencing on other grounds, we do not reach the
merits of these arguments.”); Gouldin v. Inter-Ocean Ins. Co., 248 N.C. 161, 170, 102
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S.E.2d 846, 852 (1958) (“Since the questions raised by the plaintiff’s other
assignments of error may not recur on retrial, we refrain from discussing them.”).
The language of the remand order taken in context of the entire opinion, this
Court’s precedent of issuing general remands for resentencing and reaching only
necessary issues on appeal, and the lack of instructions clearly limiting the scope of
the remand all point to the conclusion that the Watkins II Court intended that the
remand be general and that defendant be entitled to a de novo resentencing.
Therefore, the Watkins II mandate, properly interpreted, required the trial court on
remand to first decide the jurisdictional issue and, if found, proceed de novo with
resentencing. Because the trial court misinterpreted our mandate, we vacate
defendant’s sentence and remand for a de novo resentencing. Because Watkins raised
three other objections in his prior appeal and these issues were left undecided by this
Court, he was not barred from asserting them at resentencing following the remand
as well as in this appeal. Therefore, the trial court erred in refusing to consider
defendant’s challenges following the remand for resentencing in light of Degree.
On remand, the trial court is to conduct resentencing de novo. We do not intend
to limit the scope of this remand in any respect. We emphasize for clarity that the
jurisdictional issue in light of Degree should also be reconsidered de novo. If the trial
court concludes it has jurisdiction, the trial court is to proceed with a de novo
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resentencing, where defendant has the right to be present and right to assert any
challenges to the legality of his sentence.
IV. Conclusion
This Court’s decision in Watkins II is properly construed as a general remand
rather than a limited remand. The trial court was required to address the
jurisdictional issue and, if found, conduct a de novo resentencing. Although our
mandate reversed defendant’s sentence and remanded on jurisdictional grounds
alone, as well as referenced the issue of jurisdiction when ordering remand for a new
sentencing hearing, it never limited the scope of remand to only the issue of
jurisdiction. Because the trial court misinterpreted this Court’s mandate, we vacate
its 23 January 2014 order and remand for a de novo resentencing.
Vacated and remanded for de novo resentencing.
Judges BRYANT and ZACHARY concur.
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