Opinion
No. 3D19-192
03-11-2020
The State of Florida, Appellant, v. Efren Yero, Appellee.
Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney General, for appellant. Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellee.
Not final until disposition of timely filed motion for rehearing. Lower Tribunal No. 79-4932 An Appeal from the Circuit Court for Miami-Dade County, Alberto Milian, Judge. Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney General, for appellant. Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellee. Before SCALES, HENDON and LOBREE, JJ.
ON MOTION TO DISMISS APPEAL
SCALES, J.
The State seeks to appeal the trial court's January 30, 2019 order that, pursuant to this Court's mandate, vacates Efren Yero's sentence and directs that Yero be resentenced at a future sentencing hearing. Yero has moved to dismiss the instant appeal, claiming that the January 30, 2019 order is not one of the enumerated appealable orders set forth in section 924.07(1) of the Florida Statutes (2019) and Florida Rule of Appellate Procedure 9.140(c)(1). We agree with Yero and, therefore, dismiss this appeal for lack of jurisdiction.
The State does not argue that the order falls into any category of appeals authorized by section 924.07(1) or rule 9.140(c)(1). Instead, the State suggests that, in order to assert jurisdiction over this otherwise non-appealable order, we should reach the merits of the State's appeal by treating Yero's motion to dismiss the appeal as a motion to enforce this Court's mandate, and deny same. The State, however, cites no authority to support this creative proposition; nor is the State's position supported by the record. Indeed, by entering the January 30, 2019 order the trial court has already taken steps - entirely consistent with this Court's mandate in Yero I — to enforce the mandate by vacating Yero's sentence and scheduling a resentencing hearing. It is the State, not Yero, that has prematurely sought affirmative relief from this Court before a final sentencing order could be entered below.
We decline the State's invitation to assert our appellate jurisdiction when none exists. The Florida Legislature has expressly and clearly delineated the parameters of this Court's jurisdiction to hear appeals brought by the State; we have jurisdiction to review only those orders enumerated in section 924.07(1) and rule 9.140(c)(1). See State v. Lundy, 233 So. 3d 1252, 1253 (Fla. 3d DCA 2017). As the State all but concedes that the challenged order is not in that schedule, we grant Yero's motion to dismiss the instant appeal for lack of jurisdiction without prejudice to either party filing a timely notice of appeal after a final, appealable sentencing order has been entered by the trial court.
Appeal dismissed.
Yero v. State, 217 So. 3d 150 (Fla. 3d DCA 2017) ("Yero I"). In Yero I, we applied this Court's decision in Carter v. State, 215 So. 3d 125 (Fla. 3d DCA 2017), quashed by 44 Fla. L. Weekly S125 (Fla. Jan. 3, 2019) — which relied upon the then-applicable Florida Supreme Court precedent articulated in Atwell v. State, 197 So. 3d 1040 (Fla. 2016) — and vacated Yero's 155-year prison sentence. This Court remanded the cause for resentencing by the trial court. On the merits, the State argues, as it did below, that this Court's mandate is no longer good law in light of the Florida Supreme Court's decision in Franklin v. State, 258 So. 3d 1239 (Fla. 2018), a decision that receded from Atwell.