FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-3363

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KELVIN TERRILL DORTCH,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Escambia County.

Thomas V. Dannheisser, Judge.

February 15, 2019

OSTERHAUS, J.

Kelvin Terrill Dortch appeals from a re-sentencing in which 

he was sentenced to concurrent life sentences for his crimes. We 

affirm. We disagree with Mr. Dortch’s argument that our prior 

mandate in Dortch v. State, 137 So. 3d 1173 (Fla. 1st DCA 2014)

entitled him to be sentenced to concurrent terms of 40 years 

incarceration. We also conclude that the trial court made the 

findings required by section 921.1401, Florida Statutes before 

imposing life sentences.

I.

Mr. Dortch’s case has a complex sentencing history. On 

August 25, 1992, the State charged Mr. Dortch by indictment with

committing multiple crimes including sexual battery and armed 
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robbery. On March 9, 1994, he was found guilty by a jury. The trial 

court sentenced him to life incarceration for the sexual battery 

count and two robbery counts. 

After the United States Supreme Court decided Graham v. 

Florida, 560 U.S. 48 (2010), the State filed a motion to correct Mr. 

Dortch’s illegal life sentence. The trial court granted the State’s 

motion and resentenced Mr. Dortch to concurrent terms of 40 

years’ incarceration for the sexual battery count and one of the 

robbery counts, running them consecutive with the other robbery 

count and with the sentence from another case (case number 92-

4605). 

Mr. Dortch appealed the new sentence asserting, among other 

things, that the court failed to follow the parties’ prior stipulation 

that his sentences run concurrent with the sentence in the other 

92-4605 case. Dortch v. State, 137 So. 3d 1173, 1174 (Fla. 1st DCA 

2014). This court agreed that Appellant was “entitled to be 

resentenced in accordance with the stipulation,” and reversed and 

remanded. Id. at 1177-78. 

On remand, Mr. Dortch asked the trial court to simply make 

his sentence in the other 92-4605 case concurrent with his 40-year 

sentences. But the court chose instead to fully resentence him 

under the framework established in section 921.1401, Florida 

Statutes. After taking evidence, the trial court re-sentenced Mr. 

Dortch to concurrent life sentences on the sexual battery and each 

of the robbery counts, to run concurrent with his sentence in the 

92-4605 case. This appeal followed.

II.

A.

Mr. Dortch contends first that the court’s imposition of life 

sentences pursuant section 921.1401 exceeded the scope of the 

mandate in Dortch, 137 So. 3d 1173, and violates double jeopardy 

principles. We disagree. In Dortch, this court reversed and 

remanded the 40-year consecutive sentences, finding that Mr. 

Dortch was “entitled to be resentenced in accordance with the 

stipulation,” so that his sentences would run concurrently with his 

sentence in the other 92-4605 case. Id. at 1177. The dispositional 
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language at the end of the opinion was “Reversed and remanded” 

with no specific directions. Id. at 1778. 

“When an order or judgment is reversed and remanded, the 

lower tribunal has authority to conduct further proceedings in 

conformity with the instruction of the appellate court.” Collins v. 

State, 680 So. 2d 458, 459 (Fla. 1st DCA 1996). Only when the 

appellate court provides specific instructions, is the otherwise 

broad authority of a trial court narrowly constrained. Id. Here, 

with no specific directions to the contrary, the well-established 

principle is that “resentencing is a de novo proceeding in which the 

decisional law effective at the time of the resentencing applies.” 

State v. Fleming, 61 So. 3d 399, 400 (Fla. 2011). Thus, under the 

terms of the Dortch mandate, the trial court had authority to 

conduct de novo resentencing. Its actions were perfectly

appropriate because “where a sentence has been reversed or 

vacated, the resentencings in all criminal proceedings . . . are de 

novo in nature.” Id. at 406. “[T]he full panoply of due process 

considerations attach . . . [and] both parties may present new 

evidence bearing on the sentence.” Id. (citing State v. Scott, 439 So. 

2d 219, 220 (Fla. 1983)).

The State is also correct that by the time of Mr. Dortch’s 

second resentencing, the decisional law provided for re-sentencing 

pursuant to chapter 2014-220, Laws of Florida (which is codified 

in section 921.1401, Florida Statutes). Indeed, the Court in Kelsey 

v. State, 206 So. 3d 5, 11 (Fla. 2016), held that in the Graham

resentencing context, a defendant’s 45-year sentence without the 

benefit of review under section 921.1402 was illegal because “the 

Legislature has determined that the ‘means and mechanisms for 

compliance’ with Graham are to provide judicial review for 

juvenile offenders” who are sentenced to lengthy terms of years.

This holding was applied to a sentence of 40 years incarceration in 

Lee v. State, 234 So. 3d 562 (Fla. 2018).

Double jeopardy principles also did not preclude the 

imposition of a life sentence in this case. Mr. Dortch’s original 

sentence was life incarceration, which was vacated in the 

aftermath of and pursuant to Graham. The Florida Supreme Court 

has made clear that jeopardy only attaches to legal sentences. 

Kelsey, 206 So. 3d at 11. So when Mr. Dortch was resentenced 
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under the new law’s provisions, the State could “again seek life 

imprisonment with judicial review.” Id. Jeopardy did not attach to 

Mr. Dortch’s 40-year sentences because they were illegal under 

Kelsey and Lee. As such, the imposition of a life sentence pursuant 

to section 921.1401 was not error and did not violate double 

jeopardy principles.

B.

Mr. Dortch next contends that the trial court erred in 

declining to make specific findings regarding the factors 

enumerated in section 921.1401(2)∗ and implemented via Florida 

Rule of Criminal Procedure 3.781(c).

 ∗ Section 921.1401(2), Fla. Stat. provides that

(2) In determining whether life imprisonment or a term 

of years equal to life imprisonment is an appropriate 

sentence, the court shall consider factors relevant to the 

offense and the defendant’s youth and attendant 

circumstances, including, but not limited to:

(a) The nature and circumstances of the offense 

committed by the defendant.

(b) The effect of the crime on the victim’s family 

and on the community.

(c) The defendant’s age, maturity, intellectual 

capacity, and mental and emotional health at the time of 

the offense.

(d) The defendant’s background, including his or 

her family, home, and community environment.

(e) The effect, if any, of immaturity, impetuosity, or 

failure to appreciate risks and consequences on the 

defendant’s participation in the offense.

(f) The extent of the defendant’s participation in 

the offense.

(g) The effect, if any, of familial pressure or peer 

pressure on the defendant’s actions.

(h) The nature and extent of the defendant’s prior 

criminal history.
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In imposing Mr. Dortch’s sentence, the trial court made it

clear at the resentencing hearing and in its written order that it 

had reviewed and considered the factors listed in § 921.1401(2) 

before it resentenced Mr. Dortch to life imprisonment. Twice at the 

hearing, the trial court stated the findings specifically required by 

the rule: that all relevant factors required by § 921.1401(2) had 

been “reviewed and considered by the Court, including the entire 

record and the evidence and arguments submitted at the 

sentencing hearing . . . and that a sentence of life imprisonment is 

appropriate.” The trial court’s written order said much the same 

thing: “the Court considered the evidence related to the offense, 

the defendant’s youth and attendant circumstances, including, but 

not limited to those enumerated in § 921.1401(2), Florida Statutes 

[and] has concluded that a sentence of life imprisonment is 

appropriate.”

These findings are all that the statute and rule require. 

Section 921.1401(2) sets forth no requirement to make detailed 

findings on all ten of its factors. Indeed, the statute’s “including, 

but not limited to” language indicates that the statute’s list isn’t 

exhaustive of what courts must consider: “In determining whether 

life imprisonment . . . is an appropriate sentence, the court shall 

consider factors relevant to the offense and the defendant’s youth 

and attendant circumstances, including, but not limited to: [the

10-factor list].” Id.

Rule 3.781(c) implements this statute by requiring that courts 

make two “specific” findings on the record:

The court shall make specific findings on the record that all 

relevant factors have been reviewed and considered by the 

court prior to imposing a sentence of life imprisonment or a 

term of years equal to life imprisonment.

Fla. R. Crim. P. 3.781(c). Specifically, courts must find on the 

record that they have (1) “reviewed” and (2) “considered” all 

relevant factors prior to imposing a life sentence. The rule’s 

requirements go no further than that. The rule doesn’t say, for 

 

(i) The effect, if any, of characteristics attributable 

to the defendant’s youth on the defendant’s judgment.

(j) The possibility of rehabilitating the defendant.
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instance, that trial courts must make findings as to each of the ten 

§ 921.1401(2) factors, in addition to whatever other factors they 

review and consider, in pronouncing a sentence. 

And so, in this case, the trial court conducted an adequate 

resentencing hearing. It went over the statutory factors and heard 

evidence about them. Then, it acknowledged that it had “reviewed 

and considered” all relevant factors as required by the statute and 

rule before sentencing Mr. Dortch to life. Under these 

circumstances, the trial court did all that was required under the 

statute and rule in exercising its judicial authority to render a life 

sentence. Cf. Mendoza-Magadan v. State, 217 So. 3d 112 (Fla. 4th 

DCA 2017) (concluding that specific findings were not required in 

a different juvenile sentencing context); Chavez-Mesa v. U.S., 138 

S. Ct. 1959 (2018) (finding a trial judge’s form-order decision to 

have satisfied the Federal Sentencing Guidelines’ requirement to 

“state in open court the reasons for [imposing] the particular 

sentence”). 

III.

Finally, we affirm the trial court’s decision not to impanel a 

jury for the resentencing under the authority of Copeland v. State, 

240 So. 3d 58, 59-60 (Fla. 1st DCA 2018). We also affirm as to Mr. 

Dortch’s remaining claims without comment.

AFFIRMED.

JAY, J., concurs; MAKAR, J. dissents with opinion.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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MAKAR, J., dissenting.

This dissent is among the most unlikely because I dissented 

in Dortch v. State, 137 So. 3d 1173, 1179 (Fla. 1st DCA 2014)

(Dortch I), concluding that Dortch had either waived or abandoned 
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the stipulation at issue and was not entitled to its benefit at 

resentencing on remand. I disagreed with the panel majority’s 

conclusion as to the vitality of the decades-old stipulation, but I 

fully understood their clearly-stated intent, which was that Dortch 

was “entitled to the benefit of the bargain” on remand and that he 

was “entitled to be resentenced in accordance with the stipulation.” 

Id. at 1177 (emphasis added). The remand in Dortch I was 

predicated on the specific holding that Dortch was entitled to 

resentencing in accord with the stipulation, which is the law of the 

case and must be honored as binding. See generally Phillip J. 

Padovano, Florida Appellate Practice, § 20:12 (“Law of the Case”)

(2018). As such, I fail to see any basis that justified Dortch being 

resentenced de novo on remand as if the stipulation never existed. 

This case does not involve a general, undifferentiated remand 

without directions where broad discretion is accorded to the trial 

judge. See Collins v. State, 680 So. 2d 458, 459 (Fla. 1st DCA 1996).

Instead, it involves a specific holding that limited the scope of 

remand to the stipulation. This limitation didn’t have to be in the 

dispositional language at the end of the opinion, as long as it was 

evident in the prior panel’s opinion, as it was in this case. See, e.g.,

Ketcher v. Ketcher, 188 So. 3d 991, 994 (Fla. 1st DCA 2016)

(Ketcher I) (panel’s directions as to remand contained in body of 

opinion), opinion after remand, Ketcher v. Ketcher, 198 So. 3d 1061, 

1063 (Fla. 1st DCA 2016) (holding that trial court exceeded 

mandate set forth in Ketcher I). Dortch is unequivocally entitled to 

the benefit of the stipulation, which subjects him to concurrent 40-

year sentences versus the de novo resentencing that netted him 

life. Denying Dortch of the benefit of the stipulation amounts to a 

breach of the mandate and a due process violation.

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Andy Thomas, Public Defender, and Glen P. Gifford, Assistant 

Public Defender, Tallahassee, for Appellant.

Ashley B. Moody, Attorney General, and Virginia Harris, 

Assistant Attorney General, Tallahassee, for Appellee.