STATE OF FLORIDA v. JERRY PHARISIEN, 18-4254

Background

In 2010 a jury convicted Jerry Pharisien of second-degree murder and attempted second-degree murder arising from a nightclub shooting; the trial court instructed the jury using the 2008 amended manslaughter-by-act instruction as a lesser-included offense to second-degree murder.
Pharisien appealed; this court initially affirmed but the Florida Supreme Court quashed and remanded for reconsideration in light of Daniels and Griffin, which found problems with the 2008 manslaughter instruction.
On remand this court issued an opinion reversing and remanding for a new trial, citing Daniels and Griffin; the opinion was ambiguous as to whether it affected only the second-degree murder conviction or also the attempted murder conviction.
At the remand hearing the parties and trial court understood the reversal to apply only to the second-degree murder count; Pharisien pled no contest to that count and received a 25-year sentence concurrent with the existing 30-year sentence on the attempted-murder conviction.
In 2018 Pharisien filed a pro se Rule 3.850 motion attacking the attempted second-degree murder conviction; the postconviction court concluded the 2015 opinion had vacated the attempt conviction, found the motion timely, dismissed it as moot, appointed counsel, and set a new trial on the attempted-murder charge.
The State petitioned for certiorari (treated as prohibition). This court held the 2015 opinion reversed only the second-degree murder conviction, granted relief, and quashed the postconviction court's order directing a new trial on the attempted-murder charge.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Pharisien)	Held
Scope of 2015 appellate mandate	2015 opinion reversed only the second-degree murder conviction; attempted-murder conviction remained final	2015 opinion reversed both convictions, so the attempt conviction was vacated	Reversal applied only to second-degree murder; attempt conviction was not vacated
Timeliness of 3.850 motion attacking attempted murder	Motion is untimely as to the 2010 attempted-murder conviction because it was not disturbed by remand	Motion is timely because the attempted-murder conviction was vacated by the remand/reversal	Motion was not timely; postconviction court erred in treating it as timely based on misreading of mandate
Use of prohibition to enforce appellate mandate	Prohibition is appropriate to stop a trial court from proceeding contrary to an appellate mandate	Trial court reasonably interpreted ambiguous language; should be allowed to proceed	Prohibition granted to prevent trial court from acting contrary to the appellate court’s mandate

Key Cases Cited

Pharisien v. State, 176 So. 3d 1284 (Fla. 2d DCA 2015) (appellate opinion reversing and remanding for new trial based on erroneous 2008 manslaughter instruction)
Daniels v. State, 121 So. 3d 409 (Fla. 2013) (held the 2008 manslaughter-by-act jury instruction ambiguous and erroneous)
Griffin v. State, 160 So. 3d 63 (Fla. 2015) (addressed effect of manslaughter instruction error when sole defense was misidentification)
State v. Montgomery, 39 So. 3d 252 (Fla. 2010) (prior decision finding earlier manslaughter instruction erroneous)
State v. Bynes, 121 So. 3d 619 (Fla. 4th DCA 2013) (prohibition appropriate to prevent trial court from proceeding contrary to appellate mandate)
InPhyNet Contracting Servs., Inc. v. Soria, 82 So. 3d 1049 (Fla. 4th DCA 2011) (same)