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, 

(Fla. 2016). We partially receded

from Hurst in State v. Poole, 

(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, 

, 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.

      Our vacatur of Okafor’s death sentence relied on Hurst.

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


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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.” 

.

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.

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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, 

, 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.”

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


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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, 

, 71 (Fla. 1997); see also Bedford v. State,

, 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, 

, 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.” 

. 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, 

, 802 (7th Cir.

2016). “A prior sentence, vacated on appeal, is a nullity.” Teffeteller v. State, 

, 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, 

, 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


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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., 

, 770 (Fla. 2012) (quoting McGregor v.

Provident Tr. Co., 

, 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, 

, 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, 

, 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. 

. 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.

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, 

(Fla. 2d DCA Oct. 18, 2019); Morales v. State,

(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].”

We said we were “unwilling to go that far.”

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.

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.,

, 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., 

, 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




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