County Criminal Court: APPELLATE PROCEDURE — Appealability Jury Trial/Improper Relief — Under the law of the case doctrine, the same legal question cannot be re-determined on a subsequent appeal in the same case when the facts remain the same. Conviction and sentence affirmed. Richard Jason Kirkendall v. State of Florida, No. CRC10-008274-CFAES (Fla. 6th Cir. App. Ct. November 28, 2011).

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

RICHARD JASON KIRKENDALL,

Appellant,

UCN: 512010CF008274A000ES

v. Case No: CRC10008274CFAES

Lower No: 08-3896GCETES

STATE OF FLORIDA,

Appellee.

_____________________________/

Appeal from Pasco County Court

County Judge Robert P. Cole

Charles E. Lykes, Esq.

for Appellant

Kenneth V. Compton, A.S.A.

for Appellee

ORDER AND OPINION

On appeal, Appellant asks this court to address the merits of his motion to suppress. That issue, however, was already considered by this court in appellate case CRC09-00764-CFAES when the State appealed the same issue in the same lower court case. Under the law of the case doctrine, the legal question this court had already determined cannot be differently determined on a subsequent appeal in the same case when the facts remain the same. Therefore, Appellant’s appeal must be dismissed.

FACTUAL BACKGROUND

On September 20, 2008, Appellant was charged with DUI. Appellant filed a motion to suppress, which was heard at a January 27, 2009 hearing. Following the hearing, Judge Cole issued a written order granting the motion to suppress. The State filed a timely Notice of Appeal on February 9, 2009. On March 4, 2010, this court issued an opinion, which found that the trial court improperly granted Appellant’s motion to suppress. On April 5, 2010, the mandate issued.

Appellant subsequently entered a negotiated plea to the reduced charge of reckless driving on December 14, 2010. Appellant filed a notice of appeal on December 22, 2010. Appellant filed an Initial Brief, which asks this court to reconsider the suppression issue. The State subsequently filed a motion to dismiss, arguing that this appeal should be dismissed. Appellant filed a response, on September 12, 2011.

LAW AND ANALYSIS

Under the law of the case doctrine, “questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.” Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001). "All points of law which have been adjudicated become the law of the case and are, except in exceptional circumstances, no longer open for discussion or consideration in subsequent proceedings in the case." See Greene v. Massey, 384 So. 2d 24, 28 (Fla. 1980). The law of the case doctrine precludes subsequent consideration of issues implicitly addressed or necessarily considered by the appellate court's decision. See Dade County Classroom Teachers' Ass'n v. Rubin, 238 So.2d 284, 289 (Fla. 1970); Dicks v. Jenne, 740 So.2d 576, 578 (Fla. 4th DCA 1999). As such, since this court has already addressed the suppression issue and remanded the case to the trial court for further proceedings, the legal question this court had already determined cannot be differently determined on a subsequent appeal in the same case when the facts remain the same with no exceptional circumstances. This court’s determination on this issue is binding on both the trial court on remand and to this court on a subsequent appeal. Therefore, it is

ORDERED AND ADJUDGED that Appellant’s appeal in case number CRC10008274CFAES is hereby DISMISSED.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 28^th day of November 2011.

Original order entered on November 28, 2011 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.

Copies to:

Charles E. Lykes, Esq.

Kenneth V. Compton, A.S.A.