FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-3363
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KELVIN TERRILL DORTCH,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Escambia County.
Thomas V. Dannheisser, Judge.
February 15, 2019
OSTERHAUS, J.
Kelvin Terrill Dortch appeals from a re-sentencing in which
he was sentenced to concurrent life sentences for his crimes. We
affirm. We disagree with Mr. Dortch’s argument that our prior
mandate in Dortch v. State, 137 So. 3d 1173 (Fla. 1st DCA 2014)
entitled him to be sentenced to concurrent terms of 40 years
incarceration. We also conclude that the trial court made the
findings required by section 921.1401, Florida Statutes before
imposing life sentences.
I.
Mr. Dortch’s case has a complex sentencing history. On
August 25, 1992, the State charged Mr. Dortch by indictment with
committing multiple crimes including sexual battery and armed
robbery. On March 9, 1994, he was found guilty by a jury. The trial
court sentenced him to life incarceration for the sexual battery
count and two robbery counts.
After the United States Supreme Court decided Graham v.
Florida, 560 U.S. 48 (2010), the State filed a motion to correct Mr.
Dortch’s illegal life sentence. The trial court granted the State’s
motion and resentenced Mr. Dortch to concurrent terms of 40
years’ incarceration for the sexual battery count and one of the
robbery counts, running them consecutive with the other robbery
count and with the sentence from another case (case number 92-
4605).
Mr. Dortch appealed the new sentence asserting, among other
things, that the court failed to follow the parties’ prior stipulation
that his sentences run concurrent with the sentence in the other
92-4605 case. Dortch v. State, 137 So. 3d 1173, 1174 (Fla. 1st DCA
2014). This court agreed that Appellant was “entitled to be
resentenced in accordance with the stipulation,” and reversed and
remanded. Id. at 1177-78.
On remand, Mr. Dortch asked the trial court to simply make
his sentence in the other 92-4605 case concurrent with his 40-year
sentences. But the court chose instead to fully resentence him
under the framework established in section 921.1401, Florida
Statutes. After taking evidence, the trial court re-sentenced Mr.
Dortch to concurrent life sentences on the sexual battery and each
of the robbery counts, to run concurrent with his sentence in the
92-4605 case. This appeal followed.
II.
A.
Mr. Dortch contends first that the court’s imposition of life
sentences pursuant section 921.1401 exceeded the scope of the
mandate in Dortch, 137 So. 3d 1173, and violates double jeopardy
principles. We disagree. In Dortch, this court reversed and
remanded the 40-year consecutive sentences, finding that Mr.
Dortch was “entitled to be resentenced in accordance with the
stipulation,” so that his sentences would run concurrently with his
sentence in the other 92-4605 case. Id. at 1177. The dispositional
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language at the end of the opinion was “Reversed and remanded”
with no specific directions. Id. at 1778.
“When an order or judgment is reversed and remanded, the
lower tribunal has authority to conduct further proceedings in
conformity with the instruction of the appellate court.” Collins v.
State, 680 So. 2d 458, 459 (Fla. 1st DCA 1996). Only when the
appellate court provides specific instructions, is the otherwise
broad authority of a trial court narrowly constrained. Id. Here,
with no specific directions to the contrary, the well-established
principle is that “resentencing is a de novo proceeding in which the
decisional law effective at the time of the resentencing applies.”
State v. Fleming, 61 So. 3d 399, 400 (Fla. 2011). Thus, under the
terms of the Dortch mandate, the trial court had authority to
conduct de novo resentencing. Its actions were perfectly
appropriate because “where a sentence has been reversed or
vacated, the resentencings in all criminal proceedings . . . are de
novo in nature.” Id. at 406. “[T]he full panoply of due process
considerations attach . . . [and] both parties may present new
evidence bearing on the sentence.” Id. (citing State v. Scott, 439 So.
2d 219, 220 (Fla. 1983)).
The State is also correct that by the time of Mr. Dortch’s
second resentencing, the decisional law provided for re-sentencing
pursuant to chapter 2014-220, Laws of Florida (which is codified
in section 921.1401, Florida Statutes). Indeed, the Court in Kelsey
v. State, 206 So. 3d 5, 11 (Fla. 2016), held that in the Graham
resentencing context, a defendant’s 45-year sentence without the
benefit of review under section 921.1402 was illegal because “the
Legislature has determined that the ‘means and mechanisms for
compliance’ with Graham are to provide judicial review for
juvenile offenders” who are sentenced to lengthy terms of years.
This holding was applied to a sentence of 40 years incarceration in
Lee v. State, 234 So. 3d 562 (Fla. 2018).
Double jeopardy principles also did not preclude the
imposition of a life sentence in this case. Mr. Dortch’s original
sentence was life incarceration, which was vacated in the
aftermath of and pursuant to Graham. The Florida Supreme Court
has made clear that jeopardy only attaches to legal sentences.
Kelsey, 206 So. 3d at 11. So when Mr. Dortch was resentenced
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under the new law’s provisions, the State could “again seek life
imprisonment with judicial review.” Id. Jeopardy did not attach to
Mr. Dortch’s 40-year sentences because they were illegal under
Kelsey and Lee. As such, the imposition of a life sentence pursuant
to section 921.1401 was not error and did not violate double
jeopardy principles.
B.
Mr. Dortch next contends that the trial court erred in
declining to make specific findings regarding the factors
enumerated in section 921.1401(2) ∗ and implemented via Florida
Rule of Criminal Procedure 3.781(c).
∗
Section 921.1401(2), Fla. Stat. provides that
(2) In determining whether life imprisonment or a term
of years equal to life imprisonment is an appropriate
sentence, the court shall consider factors relevant to the
offense and the defendant’s youth and attendant
circumstances, including, but not limited to:
(a) The nature and circumstances of the offense
committed by the defendant.
(b) The effect of the crime on the victim’s family
and on the community.
(c) The defendant’s age, maturity, intellectual
capacity, and mental and emotional health at the time of
the offense.
(d) The defendant’s background, including his or
her family, home, and community environment.
(e) The effect, if any, of immaturity, impetuosity, or
failure to appreciate risks and consequences on the
defendant’s participation in the offense.
(f) The extent of the defendant’s participation in
the offense.
(g) The effect, if any, of familial pressure or peer
pressure on the defendant’s actions.
(h) The nature and extent of the defendant’s prior
criminal history.
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In imposing Mr. Dortch’s sentence, the trial court made it
clear at the resentencing hearing and in its written order that it
had reviewed and considered the factors listed in § 921.1401(2)
before it resentenced Mr. Dortch to life imprisonment. Twice at the
hearing, the trial court stated the findings specifically required by
the rule: that all relevant factors required by § 921.1401(2) had
been “reviewed and considered by the Court, including the entire
record and the evidence and arguments submitted at the
sentencing hearing . . . and that a sentence of life imprisonment is
appropriate.” The trial court’s written order said much the same
thing: “the Court considered the evidence related to the offense,
the defendant’s youth and attendant circumstances, including, but
not limited to those enumerated in § 921.1401(2), Florida Statutes
[and] has concluded that a sentence of life imprisonment is
appropriate.”
These findings are all that the statute and rule require.
Section 921.1401(2) sets forth no requirement to make detailed
findings on all ten of its factors. Indeed, the statute’s “including,
but not limited to” language indicates that the statute’s list isn’t
exhaustive of what courts must consider: “In determining whether
life imprisonment . . . is an appropriate sentence, the court shall
consider factors relevant to the offense and the defendant’s youth
and attendant circumstances, including, but not limited to: [the
10-factor list].” Id.
Rule 3.781(c) implements this statute by requiring that courts
make two “specific” findings on the record:
The court shall make specific findings on the record that all
relevant factors have been reviewed and considered by the
court prior to imposing a sentence of life imprisonment or a
term of years equal to life imprisonment.
Fla. R. Crim. P. 3.781(c). Specifically, courts must find on the
record that they have (1) “reviewed” and (2) “considered” all
relevant factors prior to imposing a life sentence. The rule’s
requirements go no further than that. The rule doesn’t say, for
(i) The effect, if any, of characteristics attributable
to the defendant’s youth on the defendant’s judgment.
(j) The possibility of rehabilitating the defendant.
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instance, that trial courts must make findings as to each of the ten
§ 921.1401(2) factors, in addition to whatever other factors they
review and consider, in pronouncing a sentence.
And so, in this case, the trial court conducted an adequate
resentencing hearing. It went over the statutory factors and heard
evidence about them. Then, it acknowledged that it had “reviewed
and considered” all relevant factors as required by the statute and
rule before sentencing Mr. Dortch to life. Under these
circumstances, the trial court did all that was required under the
statute and rule in exercising its judicial authority to render a life
sentence. Cf. Mendoza-Magadan v. State, 217 So. 3d 112 (Fla. 4th
DCA 2017) (concluding that specific findings were not required in
a different juvenile sentencing context); Chavez-Mesa v. U.S., 138
S. Ct. 1959 (2018) (finding a trial judge’s form-order decision to
have satisfied the Federal Sentencing Guidelines’ requirement to
“state in open court the reasons for [imposing] the particular
sentence”).
III.
Finally, we affirm the trial court’s decision not to impanel a
jury for the resentencing under the authority of Copeland v. State,
240 So. 3d 58, 59-60 (Fla. 1st DCA 2018). We also affirm as to Mr.
Dortch’s remaining claims without comment.
AFFIRMED.
JAY, J., concurs; MAKAR, J. dissents with opinion.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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MAKAR, J., dissenting.
This dissent is among the most unlikely because I dissented
in Dortch v. State, 137 So. 3d 1173, 1179 (Fla. 1st DCA 2014)
(Dortch I), concluding that Dortch had either waived or abandoned
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the stipulation at issue and was not entitled to its benefit at
resentencing on remand. I disagreed with the panel majority’s
conclusion as to the vitality of the decades-old stipulation, but I
fully understood their clearly-stated intent, which was that Dortch
was “entitled to the benefit of the bargain” on remand and that he
was “entitled to be resentenced in accordance with the stipulation.”
Id. at 1177 (emphasis added). The remand in Dortch I was
predicated on the specific holding that Dortch was entitled to
resentencing in accord with the stipulation, which is the law of the
case and must be honored as binding. See generally Phillip J.
Padovano, Florida Appellate Practice, § 20:12 (“Law of the Case”)
(2018). As such, I fail to see any basis that justified Dortch being
resentenced de novo on remand as if the stipulation never existed.
This case does not involve a general, undifferentiated remand
without directions where broad discretion is accorded to the trial
judge. See Collins v. State, 680 So. 2d 458, 459 (Fla. 1st DCA 1996).
Instead, it involves a specific holding that limited the scope of
remand to the stipulation. This limitation didn’t have to be in the
dispositional language at the end of the opinion, as long as it was
evident in the prior panel’s opinion, as it was in this case. See, e.g.,
Ketcher v. Ketcher, 188 So. 3d 991, 994 (Fla. 1st DCA 2016)
(Ketcher I) (panel’s directions as to remand contained in body of
opinion), opinion after remand, Ketcher v. Ketcher, 198 So. 3d 1061,
1063 (Fla. 1st DCA 2016) (holding that trial court exceeded
mandate set forth in Ketcher I). Dortch is unequivocally entitled to
the benefit of the stipulation, which subjects him to concurrent 40-
year sentences versus the de novo resentencing that netted him
life. Denying Dortch of the benefit of the stipulation amounts to a
breach of the mandate and a due process violation.
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Andy Thomas, Public Defender, and Glen P. Gifford, Assistant
Public Defender, Tallahassee, for Appellant.
Ashley B. Moody, Attorney General, and Virginia Harris,
Assistant Attorney General, Tallahassee, for Appellee.
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