Ordinarily, we would dismiss such an interlocutory appeal, see In re Appeal of Pennsylvania R.R. Co., (1956) (recognizing that the rules presuppose “a single and complete trial with a single and complete review” and forbid, absent leave granted, a partial trial court adjudication followed by appellate review and later an adjudication in the trial court of the remainder), but we will grant leave to appeal the new judgment of conviction out of time because another circumstance warrants our immediate intervention.
That circumstance is simply this: our mandate did not permit resentencing absent an adjudication of the three immovable-property counts. Kosch, at 392-93 (directing that resentencing may only occur “once those three counts are finally adjudicated”). Whether in agreement or not, a trial judge is “under a peremptory duty to obey in the particular case the mandate of the appellate court precisely as it is written.” As we said in Tomaino v. Burman, (App. Div. 2003), “the very essence of the appellate function is to direct conforming judicial action.” See also In re Plainfield-Union Water Co., (1954). Because we were unequivocal in directing that any resentencing could only occur after a final disposition of the three counts for which we remanded, the judge lacked the authority to resentence this defendant without ensuring compliance with that condition. So, without expressing any other view of the new sentence imposed or the arguments defendant posed in this appeal, we reverse the March 2, 2017 judgment of conviction and remand for further proceedings in conformity with our prior opinion and this opinion as well. In light of the passage of time since our prior mandate – more than two years – we assume the trial court will complete the remanded proceedings with all due expedition. Reversed and remanded. We do not retain jurisdiction.
The Appellate Division alludes to another reason why the trial court may have ignored their prior order. It took more than two years for the appeal to be perfected. This was likely due to the many technical requirements involved with perfecting an appeal and the fact that the appeal was pursued by a non-lawyer. During this two plus years the defendant would have been incarcerated and moving towards completion of his sentence. The trial Court may have believed that the defendant would either be deterred from appealing under the circumstances or would be released from confinement and thus lacked the motivation to appeal.
