Opinion
No. 3D18-1193
10-21-2020
Ibes GOMEZ, Appellant, v. The STATE of Florida, Appellee.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant. Ashley Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant.
Ashley Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
Before SCALES, HENDON and LOBREE, JJ.
LOBREE, J.
The defendant, Ibes Gomez, appeals from the sentencing orders in these five cases, arguing that the trial court failed to follow our mandates from prior appeals. We agree and reverse.
We decline to address the other issue raised on appeal.
In Gomez v. State, 220 So. 3d 495, 498 (Fla. 3d DCA 2017) ( Gomez I ), based upon our double jeopardy jurisprudence, we vacated the defendant's convictions for grand theft in cases F14-22387 and F15-1546, ordering that they be deemed "as the ‘lesser offenses’ of organized fraud" in those cases. "Because the deletion of these convictions will affect the scoring of the defendant and may affect the sentencing decision of the trial court," we also remanded "for the preparation of a corrected scoresheet and the resentencing of the defendant." Id. at 500. Upon remand, the trial court failed to follow this mandate. In a second proceeding, we held that it was error for the trial court to allow the defendant to vacate his guilty plea and convictions. State v. Gomez, 247 So. 3d 592, 594 (Fla. 3d DCA 2018) ( Gomez II ). We again remanded for a "reconsider[ation of] the sentence based on a correct scoresheet." Id. at 595.
In this appeal, the record shows that, after vacating the defendant's convictions for grand theft in cases F14-22387 and F15-1546, the new scoresheet substantially changed the defendant's exposure, resulting in a lowest permissible sentence of 27.075 months instead of the original 42. However, the trial court failed to conduct a full sentencing hearing and re-imposed the same aggregate sentence, without affording the defendant an opportunity to present evidence in mitigation, instead only allowing him to offer legal argument concerning mitigating factors.
According to the trial court, this was the result of its closer reading of Gomez II, the remand instructions of which were allegedly unclear as to the scope of the sentencing hearing to be conducted. However, it is not disputed that our instructions in Gomez I were clear, and any statement seemingly contrary to them in Gomez II was dictum.
The trial judge was "not authorized to deviate from the terms of [our] instructions." State v. Perez-Diaz, 232 So. 3d 1072, 1072-73 (Fla. 3d DCA 2017). To prevent any confusion, on remand, our instructions to the trial court remain that, having vacated the defendant's convictions for grand theft in cases F14-22387 and F15-1546, it must conduct a full sentencing hearing on all remaining convictions and afford the defendant the opportunity to present evidence in mitigation, with his presence and the assistance of counsel.
Reversed and remanded.