Supreme Court of Florida
____________
No. SC20-323
____________
STATE OF FLORIDA,
Petitioner,
vs.
BESSMAN OKAFOR,
Respondent.
November 25, 2020
PER CURIAM.
This case is before the Court on a petition filed by the State of Florida. See
art. V, § 3(b)(7), Fla. Const. The State asks us to reinstate the 2015 death sentence
of Bessman Okafor, which we vacated on direct appeal in 2017 under the then-
applicable rule of Hurst v. State, 202 So. 3d 40 (Fla. 2016). We partially receded
from Hurst in State v. Poole, 297 So. 3d 487 (Fla. 2020), and Okafor’s
resentencing has yet to occur. The State argues that reinstatement of Okafor’s
death sentence is required because Poole took away the legal basis for our vacatur
of that sentence and because the sentence would have been constitutional under the
correct rule announced in Poole.
We hold that our judgment vacating Okafor’s death sentence is final, that
neither we nor the trial court can lawfully reinstate that sentence, and that
resentencing is therefore required. In reaching this conclusion, we acknowledge
the burden that resentencing proceedings will place on the victims of Okafor’s
crimes. We also acknowledge the consequences for the victims in similar cases
that will be governed by our decision here. Nonetheless, our holding is compelled
by applicable law.
BACKGROUND
In 2015, a jury found Bessman Okafor guilty of first-degree premeditated
murder for the killing of Alex Zaldivar. The jury also found Okafor guilty of
attempted first-degree murder and armed burglary of a dwelling with explosives or
a dangerous weapon. Okafor v. State, 225 So. 3d 768, 772 (Fla. 2017). Consistent
with the jury’s 11-to-1 recommendation, the trial court sentenced Okafor to death
for the first-degree murder conviction. We affirmed the conviction on direct
appeal, but we vacated Okafor’s death sentence and remanded for a new penalty
phase proceeding. Id. at 770.
Our vacatur of Okafor’s death sentence relied on Hurst. Id. at 775. In Hurst
we had held, among other things, that a defendant is not constitutionally eligible
for a death sentence unless there is a unanimous jury recommendation of death and
a unanimous jury finding that the aggravating factors outweigh any mitigating
-2-
circumstances. Several years later, in Poole, we receded from Hurst “except to the
extent that it held that a jury must unanimously find the existence of a statutory
aggravating circumstance beyond a reasonable doubt.” Poole, 297 So. 3d at 491.
Given the jury’s unanimous verdicts finding Okafor guilty of one or more
contemporaneous violent felonies, Okafor would have been constitutionally
eligible for a death sentence under the rule of Poole.
We decided Poole on January 23, 2020, at which time Okafor’s resentencing
trial had not yet begun. Therefore, our Poole decision in hand, the State asked the
trial court to reinstate Okafor’s death sentence. At a hearing on the State’s motion,
the trial court asked counsel for the State: “[D]o you have a case from the Florida
Supreme Court that would say that I can ignore their mandate under the situation
that we find ourselves in?” The State admitted it had no such authority and
acknowledged that the deadline to seek a recall of the mandate had expired years
earlier.1 The trial court denied the State’s motion, ruling that a circuit court lacks
the authority to ignore a supreme court mandate.
The State then filed a petition in this Court invoking article V, section
3(b)(7) of the Florida Constitution. The petition asks that we issue either: (1) a
constitutional writ (under the “all writs” provision of article V) directing the trial
1. The mandate directing the trial court to comply with our judgment
vacating Okafor’s death sentence (in light of Hurst) issued on September 18, 2017.
-3-
court to reinstate Okafor’s death sentence; or (2) a writ of prohibition directing the
trial court not to go forward with Okafor’s new penalty phase trial.
JURISDICTION
Our jurisdiction to consider the State’s request for a writ of prohibition is not
in question. But Okafor argues that we lack jurisdiction to consider the State’s
request for a constitutional writ under the “all writs” provision of article V, section
3(b)(7). That provision says that the supreme court may issue “all writs necessary
to the complete exercise of its jurisdiction.” Art. V, § 3(b)(7). It has long been
understood that “the doctrine of all writs is not an independent basis for this
Court’s jurisdiction.” Roberts v. Brown, 43 So. 3d 673, 677 (Fla. 2010). “Rather,
its use is restricted to preserving jurisdiction that has already been invoked or
protecting jurisdiction that likely will be invoked in the future.” Id.
The conditions for us to exercise jurisdiction to hear the State’s all writs
petition are satisfied here. We previously exercised jurisdiction over the appeal of
Okafor’s murder conviction and death sentence, and the State’s petition questions
the continuing validity of our judgment resolving that appeal. Moreover, this
Court traditionally has taken an expansive view of our supervisory jurisdiction
over all proceedings in cases where a death sentence has been imposed. For
example, we have said: “[I]n addition to our appellate jurisdiction over sentences
of death, we have exclusive jurisdiction to review all types of collateral
-4-
proceedings in death penalty cases. This includes cases in which this Court has
vacated a death sentence and remanded for further penalty proceedings.” State v.
Fourth Dist. Ct. of Appeal, 697 So. 2d 70, 71 (Fla. 1997); see also Bedford v. State,
633 So. 2d 13, 14 (Fla. 1994) (finding all writs jurisdiction to consider a challenge
to a kidnapping sentence because “[w]e previously had jurisdiction of Bedford’s
kidnapping sentence in conjunction with his appeal from a conviction of first-
degree murder and a sentence of death”). In light of these precedents, we have
jurisdiction to consider on the merits the State’s request under the all writs
provision.
ANALYSIS
A. All Writs
This case ultimately is about the finality of our judgment resolving Okafor’s
appeal. It is a bedrock principle that “the judgment of an appellate court, where it
issues a mandate, is a final judgment in the cause.” O.P. Corp. v. Village of N.
Palm Beach, 302 So. 2d 130, 131 (Fla. 1974); see also Philip J. Padovano, Florida
Appellate Practice § 20:8 (2020 ed.) (“An appellate court decision ordinarily
becomes final when the appellate court issues a document known as a mandate.”).
When the mandate issued in Okafor’s appeal, our judicial labor was complete,
even though our judgment resolving the appeal required further proceedings in the
trial court.
-5-
The substance of our judgment was to “vacate [Okafor’s] death sentence and
remand for a new penalty phase.” Okafor, 225 So. 3d at 770. When an appellate
court vacates a sentence and orders a remand, “there is no sentence until the [trial]
court imposes a new one.” United States v. Mobley, 833 F. 3d 797, 802 (7th Cir.
2016). “A prior sentence, vacated on appeal, is a nullity.” Teffeteller v. State, 495
So. 2d 744, 745 (Fla. 1986). Accordingly, as to Okafor’s death sentence (though
not his murder conviction), our judgment “wiped the slate clean.” Pepper v.
United States, 562 U.S. 476, 507 (2011).
In order to change this status quo—to undo our final judgment vacating
Okafor’s death sentence—we would have to recall our mandate and then render a
different judgment. But the law constrains our ability to do so. Section 43.44,
Florida Statutes (2019), says that an appellate court’s mandate “may not be
recalled more than 120 days after it has been issued.” Similarly, Florida Rule of
Appellate Procedure 9.340(a) says that a “court may direct the clerk to recall the
mandate, but not more than 120 days after its issuance.”
We have no authority to use the all writs provision to do indirectly what
governing law prevents us from doing directly. It is undisputed that the 120-day
deadline to recall the mandate in Okafor’s appeal expired long before our decision
in Poole and therefore before the State’s subsequent petition seeking the
reinstatement of Okafor’s death sentence. In these circumstances, there is no
-6-
available legal means for us to undo our final judgment vacating Okafor’s death
sentence.2
The State resists this conclusion on several grounds, starting with its
assertion that our judgment vacating Okafor’s conviction is not final. The State
refers to our judgment as a “non-final order” and argues that there will be no
“finality as to judgment” in Okafor’s case until he is resentenced. But the overall
finality of Okafor’s case is not at issue here. What matters is the finality of our
judgment vacating Okafor’s death sentence. Under the binding legal principles we
have explained, that judgment became final when our mandate issued, and we have
no authority to revisit that judgment now.
The State also argues that recognized exceptions to the law of the case
doctrine allow us to reinstate Okafor’s death sentence. “The law-of-the-case
doctrine is the long-established ‘principle that the questions of law decided on
appeal to a court of ultimate resort must govern the case in the same court and the
trial court, through all subsequent stages of the proceedings.’” Delta Prop. Mgmt.
v. Profile Invs., Inc., 87 So. 3d 765, 770 (Fla. 2012) (quoting McGregor v.
Provident Tr. Co., 162 So. 323, 327 (Fla. 1935)). One exception to the doctrine
allows departure from the law of the case when there has been “an intervening
2. The State has not identified any common law writ that would allow us to
reinstate a previously vacated sentence, and our research failed to uncover one.
-7-
decision by a higher court contrary to the decision reached on the former appeal.”
Strazzulla v. Hendrick, 177 So. 2d 1, 4 (Fla. 1965). More broadly, the State points
to our past recognition that we have “the power to reconsider and correct erroneous
rulings in exceptional circumstances and where reliance on the previous decision
would result in manifest injustice, notwithstanding that such rulings have become
the law of the case.” State v. Owen, 696 So. 2d 715, 720 (Fla. 1997). According to
the State, the injustice exception applies here because it would “violate the
Constitution” for the trial court in this case to continue to “follow” Hurst.
These principles are of no help to the State, because the issue presented by
the State’s petition does not turn on the law of the case doctrine. Subject to its
exceptions, that doctrine locks in an appellate court’s decisions on “questions of
law” for later phases of the same case. Here the State’s petition does not present
the question whether this Court or the trial court should adhere to an earlier
appellate decision on a question of law. More specifically, the State’s petition does
not ask us to decide whether Poole, rather than Hurst, should govern Okafor’s
resentencing going forward. 3 Rather, the petition asks us to revisit and undo a
3. There is no dispute that Okafor’s resentencing is to be governed by the
procedures in the existing capital sentencing statute, which are more generous to
the defendant than the constitutional baseline established in Poole. See § 921.141,
Fla. Stat. (2019). The State’s petition is not about the legal standards to be applied
in Okafor’s resentencing, but about whether there should be a resentencing at all.
-8-
final judgment. The exceptions to the law of the case doctrine do not speak to that
issue. 4
Our opinion in Owen well illustrates the difference between a final appellate
court judgment and the decisions on questions of law that underlie that judgment.
Owen had been convicted of murder and sentenced to death, but we vacated the
conviction on the ground that it was tainted by an involuntary confession. Owen,
696 So. 2d at 717. Before Owen’s retrial, an intervening Supreme Court decision
changed the governing law by adopting a rule under which Owen’s confession
would have been admissible. The State then asked the trial court to reconsider the
admissibility of Owen’s confession for purposes of the retrial. After the trial court
denied the request, the State sought certiorari relief from the district court. The
district court denied the petition, holding that the suppression of Owen’s
confession was the law of the case, but it certified the question to this Court. Id.
The State in Owen asked our Court for two forms of relief. It first asked that
we change the law of the case so that, under the new rule of law announced by the
4. The State identifies two cases in which district courts of appeal denied
motions to enforce mandates after concluding that intervening Florida Supreme
Court decisions justified departure from the law of the case. See Marshall v. State,
No. 2D16-1095, 2019 WL 5296709 (Fla. 2d DCA Oct. 18, 2019); Morales v. State,
580 So. 2d 788 (Fla. 3d DCA 1991). Neither court addressed the finality of
judgment principle that we discuss here, and neither involved the detailed statutory
procedures that govern sentencing in death penalty cases. Therefore we do not
find these cases persuasive.
-9-
Supreme Court, Owen’s confession would be admissible in the retrial. We applied
an exception to the law of the case doctrine and granted the State’s request.
But the State went further, asking us to “reinstate Owen’s conviction on the
ground that a retrial is unnecessary in light of our decision [finding the confession
admissible].” Id. at 720. We said we were “unwilling to go that far.” Id. And we
explained why:
Our prior decision which reversed Owen’s convictions and remanded
for a new trial is a final decision that is no longer subject to rehearing.
With respect to this issue, Owen stands in the same position as any
other defendant who has been charged with murder but who has not
yet been tried. Just as it would be in the case of any other defendant,
the admissibility of Owen’s confession in his new trial will be subject
to the Davis rationale that we adopt in this opinion. However, Owen’s
prior convictions cannot be retroactively reinstated.
Id. The same reasoning applies here. While Poole established a new constitutional
baseline going forward, our judgment vacating Okafor’s death sentence is final and
no longer subject to reconsideration.
Finally, the State argues that it is unreasonable and unjust to require the trial
court to resentence Okafor now that Poole has removed the constitutional basis for
our vacatur of Okafor’s death sentence. We acknowledge the force of the State’s
argument. Most importantly, we appreciate the substantial burden that
resentencing will place on the victims of Okafor’s crimes. And we realize that
resentencing in a capital case is time-consuming and costly, all at the public’s
- 10 -
expense. These considerations, however compelling, do not give us license to
exceed the legal constraints on our authority.
B. Prohibition
In light of our conclusion that we cannot reconsider our judgment vacating
Okafor’s death sentence, the State’s request for a writ of prohibition merits little
discussion. “Prohibition is an extraordinary writ by which a superior court may
prevent an inferior court or tribunal, over which it has appellate and supervisory
jurisdiction, from acting outside its jurisdiction.” Mandico v. Taos Constr., Inc.,
605 So. 2d 850, 854 (Fla. 1992). Here, the trial court ruled correctly when it
denied the State’s motion to reinstate Okafor’s death sentence. As the trial court
itself recognized, it has both the jurisdiction and the obligation to conduct a new
penalty phase proceeding. “A trial court is without authority to alter or evade the
mandate of an appellate court absent permission to do so.” Blackhawk Heating &
Plumbing Co. v. Data Lease Fin. Corp., 328 So. 2d 825, 827 (Fla. 1975). Just like
this Court, the trial court lacks the authority to reconsider our final judgment
vacating Okafor’s death sentence.
CONCLUSION
The State’s petition is denied.
It is so ordered.
- 11 -
CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and
GROSSHANS, JJ., concur.
LABARGA, J., concurs in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
Original Proceeding – All Writs
Ashley Moody, Attorney General, Tallahassee, Florida, and Doris Meacham,
Assistant Attorney General, Daytona Beach, Florida,
for Petitioner
Mark E. Olive of Law Office of Mark E. Olive P.A., Tallahassee, Florida; Sandra
Lee Woodall, Orlando, Florida; and Marc J. Burnham, Orlando, Florida,
for Respondent
Elliot H. Scherker of Greenberg Traurig, P.A., Miami, Florida,
for Amici Curiae Paolo Annino, Richard M. Benham, Howard K. Blumberg,
Neil Chonin, John A. Devault, III, Juan Carlos Gomez, Bryan Gowdy, Scott
F. Norberg, Patsy Palmer, Ediberto Roman, George E. Schulz, Jr., Harvey S.
Sepler, Rebecca Sharpless, and Sylvia H. Walbolt
- 12 -