# Third District Court of Appeal

State of Florida

Opinion filed July 8, 2015.

________________

No. 3D15- 182

Lower Tribunal Nos. 00-316M

________________



### Larry Leatherwood,

Appellant,

vs.



### The State of Florida

, Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the

Circuit Court for Monroe County, Luis M. Garcia, Judge.

Larry Leatherwood, in proper person.

Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney

General, for appellee.

Before SUAREZ, C.J., and EMAS, and SCALES, JJ.

ON MOTION FOR REHEARING GRANTED

SCALES, J.Upon The State of Florida’s proper confession of error, we grant Larry

Leatherwood’s motion for rehearing and replace the previous per curiam opinion

of affirmance rendered in this case on February 25, 2015, with this opinion.

We vacate the trial court’s December 15, 2014 Amended Order which

denied Leatherwood’s motion for post-conviction relief (“Order on Appeal”)

because the trial court was without jurisdiction to enter the Order on Appeal. We

remand in order to allow the trial court to adjudicate Leatherwood’s motion for

post-conviction relief in accordance with our decision in Leatherwood vs. State

,

151 So.3d 1278 (Fla. 3d DCA 2014).

I. Background

Leatherwood was tried by a jury and convicted of first degree murder on

October 23, 2003. He was sentenced to life imprisonment without the possibility of

parole. On direct appeal, Leatherwood’s conviction and sentence were affirmed by

this Court. Leatherwood v. State

, 895 So. 2d 425 (Fla. 3d DCA 2005).

Since 2005, Leatherwood has made numerous efforts to obtain postconviction relief. 1 In 2011, Leatherwood filed a 3.850 motion based, in part, on an

1 Leatherwood’s first motion for post-conviction relief was filed on May 11, 2005,

and was denied by the trial court on July 11, 2005. Leatherwood’s appeal of this

denial was assigned case number 3D05-1821. This appeal was consolidated with

an appeal that was assigned case number 3D07-2740. This Court affirmed the trial

court in these consolidated cases in Leatherwood v. State

, 990 So. 2d 1076 (Fla. 3d

DCA 2008)(Table). There have been a total of thirteen appeals, motions or

petitions by Leatherwood to this Court since his conviction.

2alleged witness recantation. This Court reversed a summary denial of

Leatherwood’s 3.850 motion and remanded the case to the trial court either to hold

an evidentiary hearing or to attach record excerpts to show that Leatherwood’s

claims were not entitled to relief. Leatherwood v. State

, 75 So. 3d 369 (Fla. 3d

DCA 2011)(Mem).

The trial court then conducted an evidentiary hearing, and found that the

witness did not recant her testimony. Leatherwood appealed. This Court affirmed

the trial court’s order in Leatherwood v. State

, 141 So. 3d 191 (Fla. 3d DCA

2014)(Table).

In the instant case, Leatherwood filed another 3.850 motion for postconviction relief, this motion alleging, in part, that a potentially exculpatory

recording was not turned over to Leatherwood’s attorney. On January 30, 2014, the

trial court summarily denied Leatherwood’s motion without conducting an

evidentiary hearing. In March of 2014, Leatherwood filed an appeal from the trial

court’s January 30, 2014 order.

On December 3, 2014, this Court issued an opinion reversing the trial

court’s January 30, 2014 order because the trial court did not attach portions of the

record conclusively refuting Leatherwood’s claim. Leatherwood v

. State

, 151

So.3d 1278 (Fla. 3d DCA 2014). The Court’s December 3, 2014 opinion

3remanded the case to the trial court, and on December 30, 2014, the Court’s

mandate issued.

On December 16, 2014, prior to the issuance of our December 30, 2014

mandate, the trial court entered the Order on Appeal, which attempted to conform

to our December 3, 2014 opinion by attaching portions of the record to the order.

Leatherwood brought the instant appeal. On February 25, 2015, we rendered

a per curiam affirmance. Leatherwood filed a timely motion for rehearing, arguing

that the trial court lacked jurisdiction to enter the Order on Appeal because it was

entered prior to the issuance of this Court’s mandate.

In its response to Leatherwood’s motion for rehearing, the State concedes

that the trial court lacked the jurisdiction to enter the Order on Appeal because it

was entered prior to the issuance of the mandate.

II. Conclusion

The State properly concedes that this case is governed by Scott v. State

, 156

So. 3d 9 (Fla. 5th DCA 2014), and that the trial court, while acting efficiently in

response to our December 3, 2014 opinion, was without jurisdiction to enter the

Order on Appeal. We share with our sister court the same reluctance “to punish

efficiency;” however, it is axiomatic that an appellate court is compelled to vacate

a judgment entered absent proper jurisdiction. Id. at 10.

4We grant Leatherwood’s motion for rehearing. We replace our February 25,

2015 per curiam affirmance with this opinion. We vacate the trial court’s

December 16, 2014 Order on Appeal, and remand to allow the trial court to

adjudicate Leatherwood’s latest motion seeking post-conviction relief. 2

So Ordered.

2 We do not reach the merits of Leatherwood’s appeal seeking review of the trial

court’s Order on Appeal because the trial court was without jurisdiction to enter

the order.

5