dissenting:
With deference, I dissent. I agree with everything stated in the majority opinion down to and including the proposition that the decision of the Florida District Court of Appeal, Second District, 234 So.2d 690 (Sosa II), is the law of the case. My disagreement comes from the answer of the majority to the question whether this case does not present an exception to the rule that courts should ordinarily follow the law of the case as binding. In fact, we come right down to the third exception stated in the majority opinion as “(i) or the previous decision was clearly erroneous and would work a manifest injustice,” citing Schwartz v. NMS Industries, Inc., 575 F.2d 553, 554-55 (5th Cir.1978).
With all due deference I am of the opinion that not only the United States Supreme Court but the Florida Supreme Court has now held contrary to Sosa II, which we now apply as the law of the case. I am therefore of the opinion that the decision in Sosa II was clearly erroneous and that the application of its holding “would work a manifest injustice.”
The Supreme Court has already had one look at Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). There, with the language of the Florida Supreme Court’s per curiam opinion before it, the Court said:
If we were confronted only with the per curiam opinion of the Florida Supreme Court, reversal in this case would follow. The per curiam disposition, standing by itself, leaves no room for an interpretation by us other than that a majority of the state supreme court was “of the view that the evidence was definitely lacking in establishing beyond a reasonable' doubt that the defendants committed murder in the first degree. ...” By using the precise terminology “lacking in establishing beyond a reasonable doubt” the highest court in Florida seems to have clearly said that there was insufficient evidence to permit the jury to convict petitioner at his first trial. This positive per curiam opinion makes no reference to the trial errors raised on appeal. Viewed in this manner, the reasoning enunciated in Burks would obviously compel the conclusion that Green’s second trial violated the Double Jeopardy Clause.
Id. (footnote omitted).
The Court then noted that the situation was confused by the fact that three of the four justices who joined in the per curiam disposition expressly qualified their action by “specially concurring” in an opinion which discussed only trial error. The Court thus remanded the case to us for reconsideration and left open the matter of certifying a question to the Florida Supreme Court. We, of course, did this, and the first certified question was as follows: “Under Florida law, what is the effect of a per curiam opinion with a special concurrence from a majority of the justices joining in the per curiam opinion?”
*558The Supreme Court of Florida answered as follows:
An opinion joined in by a majority of the members of the court constitutes the law of the case. A concurring opinion does not constitute the law of the case nor the basis of the ultimate decision unless concurred in by a majority of the court. (Citations omitted). ■
Thus, the only question that had troubled the Supreme Court before remand was specifically answered by the Florida Supreme Court’s answer to our question no. 1. The Florida court’s answer to our question concluded by saying: “Here there was a per curiam opinion which gained a majority and this opinion constitutes the only opinion of the court.” The Supreme Court had already said that if that opinion was the only thing before it, it would have no alternative but to reverse Greene’s second conviction.
I recognize that the Florida Supreme Court in its answer to question no. 2 stated that the District Court of Appeal’s interpretation of the original decision in Sosa v. Maxwell, 240 So.2d 640 (1970) “became the law of the case.”
I think the most that can be said for this is that we are required to accept the answer to certified question no. 2 as stating that the usual rules observed by all courts dealing with the principle of “law of the case” are to be applied to the decision of the District Court of Appeal, Second District.
This, then brings into play the question whether “the previous decision was clearly erroneous and would work a manifest injustice.” I am willing to rely upon what the same Florida Supreme Court has said about Sosa II to the effect that it was clearly erroneous. The fact that the court said this in Tibbs, it seems to me, makes no difference. For in its Tibbs opinion, the Florida Supreme Court once again analyzed its original opinion in Greene, the court saying:
Our original opinion persuasively suggests, however, that the conviction actually was reversed because the state failed to carry its burden of proof — that is, the reversal was based on the insufficiency of the evidence. The district court, it now seems, simply interpreted our decision wrongly.
397 So.2d at 1125 (emphasis added).
Thus, not only does the answer to certified question no. 1 eliminate any question the United States Supreme Court had in Greene v. Massey, but the Florida court itself now says that it is in agreement with the United States Supreme Court as to the meaning of the original per curiam opinion standing by itself when it says: “Our original opinion persuasively suggests, however, that the conviction actually was reversed because the state failed to carry its burden of proof — that is, the reversal was based on the insufficiency of the evidence.”
This leaves us then with what I consider to be a fairly sterile answer to the second certified question to the effect that Sosa II is the law of the case.
With all these indications that 240 So.2d 640 was erroneously decided, I have no difficulty in concluding that Greene had met the first part of the third exception, that the original case was “erroneously decided.” I suppose no one could differ from the proposition that an injustice was done where a case has so clearly been erroneously decided and if correctly decided the party relying upon the exception would have had his indictment dismissed.
The extent to which the Florida court went in Tibbs to explain that practically all of the earlier cases which were there being analyzed by the court following its use of imprecise language had actually been decided on the basis of insufficient evidence and only two, including the Sosa appeal, had gone differently confirms my belief that the Florida Supreme Court in effect made what is almost a single exception to the statewide rule of construction of its opinions where it is apparent from the entire decision that there was in fact insufficient evidence to take the case to the jury. I would not hesitate to say that under such exceptional circumstances, this court should not apply the law of the case to Greene’s effort to set aside his second trial.
I would grant the Writ.