*2 retrial, 1968) (Sosa Greene was TJOFLAT, I): On Circuit Before BROWN TUTTLE, prison. to life convicted and sentenced Judges, Judge. Senior Circuit Massey, (5th Cir.1977) v. reported Greene research discloses eleven ac- Our (Greene II) regard (affirmed denial lower court’s decisions with case. tions or Greene’s relief). corpus they habeas them in the order oc- We list 905, Massey, v. Greene 432 U.S. curred. (certiorari 2949, (1977) L.Ed.2d (Fla.1965) (Sosa v. pauperis granted). proceed in forma motion to I) (original appellate reversal of trial ver- 888, Massey, 259, v. 98 S.Ct. Greene 434 U.S. dict). (motion pro hac vice (1977) 54 L.Ed.2d 172 Maxwell, (Fla.Dist.Ct. Sosa v. 234 So.2d 690 argument granted). oral (Sosa II) (writ 1970) prohibition). App. Massey, v. U.S. 98 S.Ct. Greene Maxwell, 1970) (Fla. Sosa 240 So.2d 640 III) (reversed (Greene (1978) 5th 57 L.Ed.2d 15 (certiorari denied relief and remanded of habeas Circuit’s denial Court). certify). suggestion (Fla.Dist.Ct. Greene v. 302 So.2d 202 (5th Massey, F.2d 221 Cir. Greene I) (appeal 1974) (Greene retrial). App. after 4th 1979) (Greene IV) (certified Su- Florida, Greene v. 95 S.Ct. Court). (cert. denied 44 L.Ed.2d 89 Massey, (Fla. 1980) Greene Court.) United States V) questions). (Greene (answers certified determine the att ed the case to us in order to and collateral appeals After various acks,2 petition habeas federal Greene’s I reversal and to decide basis of by the United States reviewed constitutionally used was whether the basis Court, compani case and a which used this expressly given were permissible. We principle to announce the on3 of state law option certifying questions prohibits retrial of Jeopardy Double Clause to the Florida court. same offense where a defendant for the *3 27, 2155, at 22. Tak 57 L.Ed.2d 98 S.Ct. the initial conviction appellate reversal of suggestion, might ing the Court’s of insufficient evid upon grounds was based fre approval from its of our have come ence.4 questions we certified five quent practice,5 was unable to discern Court v. Greene supreme to the Florida on what basis Greene’s first conviction was Cir.1979) (Greene Massey, (5th 221 by in fact reversed IV). supreme court definitive The Florida I. The reversal in Sosa might have them, declining two of ly only answered evidence, (ii) (i) because of insufficient been Massey, v. reach the others. Greene 384 justice,” (iii) in the “interests of or because (Fla.1980) (Greene V).6 24 trial error. The Court therefore remand- of I, II, by procedure which those who III. There is a 2. Greene special concurring opinion joined in the States, 1, United 437 U.S. 98 S.Ct. Burks v. by the lan- not have been bound would guage 2141, (1978). 57 L.Ed.2d 1 opinion. per Had of the curiam judgment simply entered a there been 2151, Massey, 4. Greene v. S.Ct. new trial with reversal and a remand for a (1978) (Greene III). 57 L.Ed.2d 15 justices concurring rea- for the each Schein, See Lehman Brothers v. U.S. separate opinions, in then none son stated (1974); 94 S.Ct. 40 L.Ed.2d 215 Zant v. except by any opinion that be bound would Stephens, 456 event, joined. In that how- in which he ever, Brown, (1982); L.Ed.2d 222 see also Certifica- by judgment have been a there would Action, in tion —Federalism Cumberland disposing no but the Court (1977). L.Rev. 455 contrast, opinion here of the Court. In opinion per there was a curiam responses questions and Florida’s follow. 6. Our opinion gained majority a and this consti- 1: Under Florida what is the Question only opinion of the Court. tutes per opinion spe- effect of a curiam with a law, what 2: Under Florida majority Question cial concurrence from a weight, any, to a Florida joining if is to be attached per opinion? in Justices curiam joined Appeal’s by majority District Court of Answer: An in a of the members of the Court constitutes Court of Florida? a decision of concurring opinion A the law of the case. Fifth Court Answer: As noted Circuit does not constitute the law of the case nor the basis of the ultimate decision unless opinion, Greene and its certification unsuccessfully sought a writ codefendant by majority concurred in Lendsay a of the Court. upon prohibition prevent a retrial Cotton, (Fla. 123 So.2d 745 v. by this Court in reversal of his conviction 1960); Ephrem Phillips, DCA v. (Fla.1968). v. 215 So.2d 736 Sosa (Fla. 1957) (on rehearing), 1st DCA argument a retrial would Their that such denied, (Fla. 1958). cert. 101 So.2d 816 jeopardy re- double clause was violate the The situation here is unlike that in Carter jected by and the District the trial court Sparkman, (Fla.1976), 335 So.2d 802 District, Appeal, in Sosa v. Second Court Maxwell, majority joined a where of the Court (Fla. So.2d 690 2d DCA both of Justice Roberts and the 1970). certiorari from the district On concurring opinion England. In of Justice decision, declined to exercise this Court (Fla.1968), Maxwell, jurisdiction. Greene who once the three members of the Court 1970). (Fla. point the decision At that joined special concurring opinion in the became'the law of of the district court joined per opin- opinion, in the curiam that jeopardy respect to the double case with claim, majority opinion ion became the as the courts of at least insofar special concurring in that case. The Court opinion As a re- are concerned. State precedential has no value and it sult, upon appeal from their conviction cannot serve to condition or limit the con- retrial, Appeal, Fourth the District Court per currence in the District, properly reconsider declined to concurring joined special three who in the jeopardy basis claim on the double same opinion. presence THE I REVERSAL stressed the of trial errors as the FOR SOSA BASIS for reversal. basis I, justices of a In four total of seven As the of the United joined court of a on the III, interpre- observed Greene States opinion reversing Greene’s brief I is seemingly tation trial: for a new remanding conviction confused three of the fact PER CURIAM. joined who justices four After a careful review of the volumi- their ac- disposition expressly qualified evidence here of the view nous we are “specially concurring” opin- in an tion lacking definitely the evidence was trial error. One only ion which discussed establishing beyond reasonable doubt a interpret this action to mean could defendants murder committed justices three were con- concurring degree, and that the interests the first joined error and simply cerned judg- justice require new trial. The solely in the remand to afford Greene re- ments are reversed and accordingly fair, though error-free trial —even a new manded for trial. *4 evidence was they were satisfied that the It is so ordered. A re- support the verdict. sufficient A of plurality at 737. of three 215 So.2d holding, of grounded versal on such a lengthy justices course, also in a joined prevent those four would not a retrial. See 15-16, Burks, 57 L Ed special U.S.], concurrence. The concurrence ante at [437 law, prior was res 4: Under what is the the district court decision Florida Question State, (Fla. precedential holding judicata. v. effect of a in which 302 So.2d 1974). only plurality join? justices of 4th DCA prece- Although appeal do Answer: We not believe that the the district of holding only authority modify of a in dential effect plurality without or overrule justices join the here interpretation of is at issue of conclusions fact or either majority justices of Court, may since a the of the Court in of law reached this it join majority opinion. in fact in a did subsequent proceedings pass issues Therefore, question. dowe not address this necessarily have not been deter- Upon grounds Su- 5: what did the Question and become of the case. mined preme the convic- Olsen, Florida reverse State, Fla., 1968, (Fla. 3d v. 365 So.2d 393 Goodman in 215 So.2d tions 1978). In this DCA case the District Court 736? District, interpreted Appeal, Second our of original grounds (a) solely Was the reversal on the State, in decision Sosa v. or of insufficient evidence? (b) 736, adjudicate in order to double Greene’s solely grounds on the Was the reversal jeopardy previ-, claim which had not been trial error? or ously Upon decided this Court. upon (c) based a combi- Was reversal certiorari, district denial of Court’s (a) (b)? nation of and decision law of the court’s became the (a), (c), upon (d) (b), what If not or Accordingly, any subsequent pro- case. grounds was the reversal based? ceeding on the same the decision original Answer: to revisit our We decline Appeal, Dis- the District Court of Second in Sosa v. 215 So.2d decision delving trict, 690, interpreting our at per curiam behind the face of the original opinion in opinion attempt in an define more clear controlling respect in Florida with ly decision. intent of in that this Court jeopardy to the double issue. sought, had codefendant Greene 3: Under what is the Question. denied, of the deci were direct review legal significance of “in the in- a reversal Appeal, sion of the District Court justice”? terests District, petition for certio Second in their already We have that Answer: stated not now be to this Court. It would rari appropriate Appeal, of the District Court play us of advo for the.role District, law of the Second constitutes the guessing predecessors our cate second under a re- case. Since the circumstances All of the writ. their reasons points denial question sponse posed would not be adjudicated law which have been cause,” of the we decline to “determinative are, except law of the case and become the discussion of undertake academic circumstances, longer exceptional no significance of a “in interests reversal in sub open for discussion or consideration 25.031, (1979), justice.” See Fla.Stat. § sequent proceedings Strazzul in the case. Fla.R.App.P. 9.510. Hendrick, (Fla.1965). la 2149]; 2d Ct 2141 by stating S United tended decline to revi [at “[w]e Tateo, 463, 465, 12 L sit our original I], by States v US Ed decision in [Sosa delving behind the face (1964). per of the curiam S Ct [at 1588] in an opinion attempt clearly to define more problem interpretation with this is that the intent of this in that decision.” the opinion by expressly stating concludes [c]ourt at 28.9 concurring justices the three had ” “agreed to the Per Curiam order .... Viewing itself, When the concurrence is considered in United Court read States its bare light language per suggesting words as that the basis was that opinion, it reasonably could said that of the evidence: concurring justices thought only If we were confronted with the legally competent evidence adduced at the first prove was insufficient Court, reversal in this case would follow. is, guilt. That they were of the disposition, standing by that once the inadmissible hearsay evi- itself, leaves no room for discounted, dence was there was insuffi- by us other than a majority of state cient permit jury evidence to to con- supreme court was “of the view that the vict. evidence definitely lacking in estab- lishing beyond a reasonable doubt 25-26, 98 S.Ct. at 57 L.Ed. the defendants committed in' the murder (notes omitted). at 21-22 ” degree.... first By using precise Because we certified to the Florida su terminology “lacking establishing be- court, however, longer there is no doubt,” yond a reasonable highest any confusion about the deference owed to Florida seems to have *5 majority per curiam opinion. We now said that there was insufficient evidence know that under Florida I Sosa permit to jury petition- to convict the plurality precedential concurrence “has no dispositive er at his first trial. The per value and it serve cannot to condition or curiam makes no reference to the limit per concurrence in the curiam trial appeal. errors raised on Viewed in opinion by join the three who the special manner, this reasoning enunciated in concurring opinion.”7 at So.2d 27. Burks obviously compel would the conclu- per opinion, therefore, The curiam “consti sion that Greene’s second trial violated only opinion tutes the of the court.” Id. Jeopardy Double Clause. 437 at But the meaning per opin curiam 24-25, 2154-2155, at L.Ed. at ion itself not easily is determined. That (emphasis supplied). opinion mentions both that “evidence was Supreme reading Deference to the Court’s definitely lacking in establishing beyond a I Sosa would be a matter of course if reasonable doubt that the defendants com reading such an isolated I Sosa were mitted murder in the degreee” first required. reading But deference to this is that reversal and a new trial should be had not mandated in this case because of the in justice.” the “interests of at So.2d marvelous device of certification. See note Thus, 737. the Florida supreme court could 5, supra. The I read Sosa cannot be have reversed Greene’s first trial on either vacuum, in a as the United States present basis. The Florida supreme court recognized by remanding Court to us with felt ill-equipped directly tell us to in certifi permissive suggestion certify. De- cation answers8 what the I in- velopments revealing. Sosa court in I were Sosa 6, supra, 7. See note guessing predecessors and Answer 4. our their reasons for Question denial of the writ.” 384 So.2d at 28. We Id., IV, opinion, and Answer certifying Greene Question observed in our justices that “of the Court of Florida I, 9. The Florida court also stated in who decided Sosa none is the court to- on Greene V that “It appropri- would not now be day.” 595 F.2d at n. 1. play ate for us to the role of advocate in second I, the Subsequent Florida courts the decision of the to Sosa district [second] appeal] became of the case ques- were confronted with the themselves [of respect claim, to the double jeopardy per tion of least courts insofar as the of the State trial, to their Greene opinion. Prior second result, of Florida are concerned. As a prohibition, argu- sought a writ of appeal their upon from conviction on re- upon ing that Sosa I was based insufficien- trial, the District of Appeal, Court Fourth was cy of evidence and that retrial District, properly declined reconsider Jeopardy therefore barred the Double jeopardy the same double claim on the The Clause. court refused prior basis the was district sought issue the writ and Greene and Sosa judicata. res Ap- review the District Court of Second Question note supra; Answer Maxwell, peal Florida. In Sosa supplied). at 27 (emphasis So.2d (1970) (Sosa II), Dis- the Second trict Court the writ of Appeal denied answer, This especially the first prohibition basing the denial on explicitly quoted part passage, indicates reading I: IT’s I interpretation of Sosa controlling under The Florida law. clear relators have not made a applies questions law of case all showing that the reversal or certi “discussed” decided.10 second this case was based unmistakably us fication answer informs to establish insufficiency of evidence appeal’s interpre district court an essential element or elements of the tation of the Rather, crimes reversal in charged. binds all courts of the state of Florida. appears finding this case to be on a based considering we are Since case on habe evidence, though that the technically suf- question turns solely upon as and ficient, prompt so tenuous law, it determination of state binds us as appellate court to exercise its discretion Thus, well. the Florida district court and, justice, grant the interest of appeal’s reading new trial. opinion, court’s as instructed (note omitted). at 691 Greene the law the the latter constitutes sought from then certiorari the Florida su- case. We therefore conclude that the Sosa preme court, without denied *6 by I cannot be read opinion. (Fla.1970). 240 640 So.2d itself, interpreted but must the Flori felt that Court therefore appeal da district court of determined significant II would have a effect on a Sosa II. The reversal of Greene’s first con federal court’s of the Sosa was not based on insuffici viction therefore opinion, and thus directed us on evidence, the rever ency of but instead remand to determine “the amount weight was based of the evidence sal on the that to a weight Florida law would afford justice”. and the “interests of district appeal’s interpretation court of ENTER TIBBS supreme action.” at 26 court’s 98 2155 n. at 22 However,

n. S.Ct. at 57 L.Ed. preparation on of an the eve previously, n. 10. As we certified cause, stated di in the our attention was supreme this and questions yet development other in Flori rected another supreme might possibly of Florida. The Florida have jurisprudence court da question, stating bearing disposition court answered our second of Greene’s a our State, as of was de- In 397 1120 that the time that certiorari case. Tibbs v. So.2d nied, (Tibbs (Fla.1981) II),11 Florida ruled in Sosa II Olsen, (Fla. 10. Goodman v. 396 case, supreme af- court the Florida In 11. Dist.Ct.App. 1978)(cited Su- the Florida appeal’s reversal court of firmed the district the trial court’s answers). See Court in its certification of the indictment dismissal 5, supra, note answer 2. against basis that a retrial on the made evidentiary prohibition reversals based on writ bar retrial and appellate did not bar retrial a defendant. weight go- characterized our earlier reversal as II significance To understand the of Tibbs ing weight, sufficiency, to this one must revisit the Florida later denied certiorari re- evidence. We supreme discussing court’s decision. In two Maxwell, opinion. view without appeal state district courts of cases in (Fla.1970). denial of So.2d Our explicitly law which body whole of Florida certiorari, course, adjudica- was not recognized evidentiary weight could although tion on the merits it made the reversals, serve as a basis for appellate district court’s Sosa ‘law [II] State, (Fla. II and Smith So.2d original opinion per- Our case.’[] 1970), supreme the Florida Dist.Ct.App.2d however, suasively suggests, that the con- court these decisions were concluded that was reversed because the actually viction probably in error. 397 at 1125. So.2d proof— its burden of carry state failed to here is The case which most concerns us is, was on the the reversal based governed Sosa II —the case which we are of the evidence. The dis- in this because the supreme action seems, it simply trict now inter- court has told us that it constitutes preted wrongly. our decision 2-3, of the case. Answers 384 So.2d at precise passage impli- in Tibbs II which (footnote omitted) (em at 1125 in the cates our decision case at bar is as phasis supplied).12 follows: In But there is still more to come. Maxwell was preced- Sosa v. [Sosa II] supreme opinion, the same (Fla. ed upon indicates that the cases 1968) I], where we reversed had [Sosa relied in revers appeal the district court the defendants’ convictions and remanded ing the trial court’s decision to dismiss for a new trial because ‘evidence was indictment, 11, supra, note had Tibbs’ see definitely lacking establishing beyond included the statement that a new trial reasonable doubt the defendants being justice”13 in the “interests of ordered committed murder first de- pursuant Appellate to Florida Rule of Pro Max- gree. ...’ Id. at 737. In Sosa v. II], 9.140(f) (1977), cedure which states: well district denied [Sosa defendant, which had been ordered In Greene III the United States supreme court of Florida in Tibbs v. Court noticed that the Florida district court of (Fla.1976) (Tibbs I), appeal would interpreted violate decision in Sosa II the Flori- Jeopardy the Double Clause of the Fifth original, per opinion, da court’s Amendment of the United States reversing Constitution. the defendants’ conviction and order- The trial appropri- court considered dismissal ing jus- a new trial to be in the “interests of light ate of the United States tice.” 437 U.S. at 22 n. 2153 n. 2. decision in Burks and Greene III. The Florida declined, however, The Court to reach the issue court based its decision on the grounds of whether a retrial ordered on such *7 grounds its reversal of the defendant’s implicated Jeopardy the Double Clause. Id. at conviction evidentiary in Tibbs I was based on 10, 26 n. 98 S.Ct. at 2155 n. 10. weight evidentiary insufficiency. rather than III, however, In Tibbs the Court lends its tacit supreme The Florida court ruled that retried approval grounds. to a retrial ordered on such jeopardy was not precepts barred double 18, 457 U.S. at 38 n. 12 102 and at 43 n. when a weight reversal was based on the 18, at 12 S.Ct. 2216 n. and at 2219 n. 72 L.Ed.2d opposed evidence sufficiency. as to its This Accordingly, at 659 n. 12 and at 662 n. 18. we distinction thus distilled the United States Su- required approval per- are to construe this preme Court affirmed Florida’s decision in mitting grounds a retrial on of “the interest of Florida, 31, 2211, Tibbs v. 457 U.S. 102 S.Ct. justice” evidentiary weight. To the extent (1982) (Tibbs III). 72 L.Ed.2d 652 grounds that Sosa II relied on these to order a trial, new that decision is correct and 12. The court’s note 13 referred to its second Jeopardy does not offend the Double Clause. answer on 384 certification. So.2d at 27.

555 justice, may justice” interest the court to determine if in the “interests of In the of regardless any required, a new trial of eviden grant any party relief to cases, Thus, regardless of tiary In court shall considerations.14 capital entitled. any to determine if the other reversal of Greene’s ground review evidence trial, upon, law re justice requires of a new conviction was based Florida interest to evi quires of evi- an review the appellate whether or not dence to whether or not the “in presented is an review. determine dence issue require terests a new trial. This justice” of 9.140(f) Rule such gives Since authority legal comes within squarely bounds Florida, a new trial appellate an courts have followed state often justice” of “is nei- ordered “interests any way double does not offend foreclosed, compelled, by double ther nor See, Wright v. jeopardy principles. e.g., principles.” jeopardy 397 So.2d at State, 26 1st (Fla.Dist.Ct.App. The Florida court stated that this (Fla.Dist. 1977); Tierney, 328 So.2d 40 In re appel- the time rule applied-by honored State, 1976); Kohn v. 289 Ct.App. 4th correct late courts Florida to “fundamen- 1974); (Fla.Dist.Ct.App. 48 3d Cleveland v. regard to injustices” tal without “evidentia- State, (Fla.Dist.Ct.App. 347 3d shortcomings, which occurred at trial.” ry 1973). Id. granted have new trials in Other cases came III in which the Su Then justice” expressly the “interests of without opportunity consider had an State, citing 9.140(f). v. 356 Rule Dukes of a appellate an reversal convic whether 1978); (Fla.Dist.Ct.App. 4th Fer- justice” of vio based on the “interests tion (Fla.Dist.Ct. v. ber 353 So.2d 1256 Jeopardy the Double Clause. Tibbs lated 1978); 2d App. McClain Florida, 31, 2211, 102 S.Ct. U.S. (Fla.Dist.Ct.App. 1977). As a con- (1982)(Tibbs III). The L.Ed.2d 652 Court’s sequence, accept petitioner’s invi- we do hint disap discloses not even a of petition tation grant for us to habeas fact, In the Court took formal no proval. light sugges- court’s 9.140(f) tice of Florida Rule appellate wrongly II was tion Tibbs II at 36 disapprove of it. U.S. did not at 1125. decided. 397 So.2d 8, 8, 102 at n. at n. L.Ed.2d Court, Furthermore, n. 8. demon inclined, moreover, apply We are strating the reasonableness of traditional case in the law case doctrine to this approach, emphasized such an that F.R. stemming from light the uncertainties Crim.P. 33 authorizes a new “if re I. are mindful that Sosa While we justice” quired in interest of and that “discretionary rule is a case doctrine set aside many federal courts have convic practice,” States v. United States United that are against tions 186, Smelting, Company, M R & this rule. Id. 457 by invoking evidence 750, 94 L.Ed. 70 S.Ct. n. at n. at 38 102 S.Ct. command,” (1950), an and “is not inexorable 72 L.Ed.2d 659 n. 12. Murtha, 428, (5th Cir. White 9.140(f) 1967), a court has “undoubted Finally, Rule Florida Rules and that in a prior decision” Appellate appellate power Procedure overrule [its] allow Life Insurance Com capital court in to review the evidence National eases Lincoln ment 9.140(f) Rule who has been sentenced is a recodification the same a defendant appellate review the rule that was at the time of court shall effective Greene’s death the jus- Fla.R.App.P. 6.16(b) (1965). if conviction. Old to determine the interests evidence trial, 6.16(b) require Rule the insuffici- stated: tice a new whether *8 ground appeal ency or is a the evidence Upon appeal by an the defendant from the not. judgment appellate shall court review the practically identical rule is It is clear that this if evidence determine it is insufficient to 9.140(f) present II in Tibbs rule discussed support judgment ground this is where a and III. appeal. Upon appeal judg- from an Roosth, (5th facts, Cir. a case where pany parties, banc), 1962) (en we must face the awesome the time were all different and there were part system “we are a of a conclusion different considerations before the court. and, result, law”, Id., a of courts of as views in anyway Neither Greene nor Sosa was judges always will not be the same Thus, litigation. connected with the Tibbs all time. The law of the case doctrine has a possibly Tibbs cannot be considered “sub bringing finality litigation the virtue of sequent proceeding,” v. Hen Strazzulla “stability perma in the law —a sort of drick, (Fla.1965), order bar apart nence and sureness in decision from operation concepts. of law of case It or make-up composition particu entirely separate proceeding was an person lar so far as the tribunal supreme which the Florida court could have judges is concerned.” Id. II, not overruled but did do so. Sosa principle We believe is the one operation Petitioner seeks to avoid firmly embraced the Florida supreme law of the case doctrine to his situation court in its fifth answer to our certification pointing out that the law of the case doc questions when it declined to delve “behind exceptions. trine has three built-in He as the face of the in an serts that the law of the case doctrine attempt ... to define the intent” of the granting from preclude should not members of the Florida court who (i) correcting injustice relief or when I, decided none of Sosa whom was on the evidence on a second or third trial was subsequent certifying court. 384 different, substantially (ii) controlling au Thus, court of Florida in thority contrary has since made a Greene V determined that the district court law, (iii) applicable previous or the appeal’s interpretation of its decision was erroneous and would right wrong was—whether or law of —the injustice. work a manifest Schwartz altered, just the case until not criticized Industries, Inc., F.2d 554-55 NMS the Supreme ignore Court. We cannot this. (5th Cir.1978). We are of the view that the principal hold- exception. Petitioner’s case fits neither ing in II is deserving Sosa of and entitled to iterated, place, just In the first as we have repose. Litigation of habeas claims would separate separate Tibbs II is a case with virtually everytime endless if there was facts, parties separate tried before a a change composition in state or of a separate court for a crime at a separate may subsequently criticize or Second, separate II time. Tibbs does implicitly come close to overruling previ- decision, “change applicable ous constitute a in the law” petitioner a habeas could come into federal court regard and declare that he was with to Greene’s case. II char- Sosa being held in violation of the law. appellate acterizes the reversal of Greene’s evidentiary weight as based on conviction Equally persuasive to us is the petition- II justice”. and the “interests of Tibbs er’s own passage characterization of the both, III. approves of as does Tibbs II which Tibbs criticizes the Florida district Greene’s conviction was reversed on those of appeal’s holding II. “change grounds. There has thus been no concedes, must, petitioner as he Moreover, the lan- applicable law.” passage in Tibbs II which criticizes II rule guage conclusively in Tibbs II does not dicta, merely which does not and cannot out, that the possibility or even consider overrule the Florida supreme court’s an- reversal in Sosa was based considera- swer to us that Sosa II must be regarded lacking tions other than the law of the case. Nor can we in the face evidence — sufficiency or as the “inter- positive Florida’s declaration II that Sosa —such Third, justice.” injustice ests of manifest case, is the law of the construe this dicta to II, given will not result because we have overrule since II is an unre- involving controlling weight required lated neither II as we are par- the same Indeed, ties nor the certi- same facts. Tibbs II do in view of Florida’s answers to our *9 questions. Finally, fication we observe that application the holding “would the doctrine of the injustice.” law of the case dictates work a manifest that “once ap a case has been decided on Supreme Court has already had one peal, the rule adopted applied, right is to be Massey, look at Greene v. or wrong, exceptional absent circumstances (1978). There, L.Ed.2d disposition in the law suit.” language with the of the Florida Supreme Industries, Schwartz v. 575 F.2d at NMS it, per opinion Court’s curiam before (emphasis supplied). II Tibbs does Court said: supply not those exceptional circumstances. If we were only confronted with the per opinion curiam of the Florida Su- CONCLUSION Court, preme reversal in this case would Because the Florida Supreme Court has per follow. The curiam disposition, told us that Sosa II was determinative of itself, standing by leaves no room for an the issue in this we must view the us other than that a appellate reversal majority of Greene’s conviction as of the state court was based on “of the view that the evidentiary weight and the “inter evidence was defi- nitely lacking in establishing beyond a justice.” Finding ests of ourselves bound reasonable' doubt the defendants by Florida’s interpretation binding ef committed murder in the first de- law, fect of its deny own we must Greene’s gree. By using precise ...” termi- petition for habeas relief.15 nology “lacking in establishing beyond a PETITION DENIED. AFFIRMED. reasonable doubt” the highest court Florida seems to have said that TUTTLE, Judge, dissenting: Circuit there was permit insufficient evidence to deference, With I agree dissent. jury to convict petitioner at his first everything majority opinion stated positive trial. This per curiam down to and including proposition makes no reference trial errors the decision of the Florida District appeal. manner, raised on Viewed this Appeal, District, (Sosa Second reasoning enunciated in Burks would II), is the law of My disagree- the case. obviously compel conclusion that ment comes from majori- the answer of the second Green’s trial violated the Double question ty whether this case does Jeopardy Clause. present exception rule (footnote omitted). Id. courts should follow the law ordinarily The Court then noted that the situation fact, the case as In binding. right we come was confused the fact that three down to exception the third stated in the justices joined per four who majority opinion “(i) previous or the deci- disposition expressly qualified their action sion was clearly erroneous and would work by “specially concurring” in an opinion injustice,” a manifest citing Schwartz only which discussed trial error. The Court Industries, Inc., NMS 554-55 thus remanded case to us for reconsid- (5th Cir.1978). open eration and left the matter of cer- With all due I am opin- deference tifying question to the Florida ion that not only United States Su- We, course, this, Court. did and the first Court but question certified was as follows: “Under II, contrary Court has now held to Sosa what is the effect of a apply which we now as the law of the case. special with a concurrence I am therefore of the that the deci- justices joining from a majority sion in II was clearly opinion?” erroneous and Nothing jus- say negatives right we whatever of conviction reversals in the “interests III, repair question Greene has to to the Florida courts for remains a tice” light relief. In ing of the dicta in Tibbs II concern- state rather than federal law. approval Sosa II and the Court’s *10 seems, interpreted simply Florida answered our decision Supreme Court of

The wrongly. follows: joined by a opinion majority An in added). (emphasis 397 So.2d at the members of the court constitutes the Thus, the to certi- only not does answer concurring case. opinion law of the A any question no. 1 eliminate question fied not constitute the law of the case does in Supreme had the United States Court of the ultimate decision nor the basis Massey, but the Florida Greene v. the by majority concurred in unless agreement that it is in says itself now n (Citations omitted). court. the Supreme the as to United Court States Thus, question had only the that troubled meaning original per opinion Supreme spe- the Court before remand was standing origi- it by says: itself when “Our cifically Supreme answered the Florida however, opinion persuasively suggests, nal to no. question Court’s answer our 1. The that the was reversed actually conviction question to our con- Florida court’s answer to its burden carry because the state failed saying: “Here there was a cluded is, the reversal was based proof —that gained majority insufficiency evidence.” only opinion this constitutes the I consider This us then with what leaves The al- Supreme the court.” Court had to be a sterile answer to the second fairly that if ready only said that was the II that question certified to effect it, it thing before would have no alternative is the the case. law of to reverse but Greene’s second conviction. With these indications that all recognize I that the Florida Supreme decided, no dif- 640 was I have erroneously in its answer no. 2 question Court to stated had met ficulty concluding that Greene District Appeal’s interpre- that the Court of exception, that part the first third original tation decision decided.” original “erroneously case was Maxwell, 240 (1970) “became the suppose I no one could from differ the case.” law of proposition injustice was done that I think the most that can said for this where a so erroneous- clearly case has been required accept that we are to the answer correctly party ly and if decided decided question stating certified no. 2 as that relying exception have had upon the would the usual rules all observed courts deal- dismissed. indictment ing with the “law of the principle of case” to which Florida court extent applied are to be to the decision all explain went in practically Tibbs to that of Appeal, District Court Second District. being there of the earlier cases were This, brings then play question into use of analyzed following the court its previous whether “the decision was decid- imprecise language actually had been injus- erroneous and a manifest would work ed on the of insufficient evidence basis I am willing rely upon tice.” what the two, had only including appeal, same Florida has said about Court gone differently my confirms belief II to the it was clearly effect made effect erroneous. fact that the court said this single exception what almost a Tibbs, me, it seems makes no differ- opin- of its statewide rule of construction its opinion, ence. For in the entire apparent ions it is from where again analyzed Court once insufficient there fact Greene, original opinion the court saying: I jury. evidence to take the case to the original sug- Our opinion persuasively say that under such would not hesitate however, gests, actu- conviction circumstances, court should exceptional ally was reversed because the state failed to Greene’s case apply is, carry proof its burden of —that aside his second trial. effort to set reversal was based on the the Writ. grant the evidence. The district it now would