BEFORE: *WASHINGTON, Chief Judge; RUIZ, *REID, GLICKMAN, KRAMER, FISHER, BLACKBURNE-RIGSBY, and *THOMPSON,Associate Judges; *fn1FARRELL, Associate Judge, Retired.
On consideration of appellee's petition for rehearing, appellee's petition for rehearing en banc, and the opposition thereto, and further, on consideration of the supplemental briefs filed by appellee, appellant, and the Public Defender Service as amicus curiae (in support of appellee), in response to this court's order dated April 9, 2008, the court enters this order amending its decision of December 20, 2007, as it appears at 939 A.2d 65 (D.C. 2007), and reissuing the opinion in amended form. It is
ORDERED by the merits division* that the petition for rehearing is granted to the extent that this court's opinion filed December 20, 2007, (939 A.2d 65, D.C. 2007), is hereby vacated. That opinion issued on December 20, 2007, is hereby amended as follows; and the amended opinion, incorporating these changes, is issued on this date.
(1) The section including the names of attorneys, bottom of the second column, at 939 A.2d 65 is modified by adding:
James Klein and Jaclyn S. Frankfurt, Public Defender Service, amicus curiae, in support of appellee's petition for rehearing and rehearing en banc.
(2) New footnote 1 is added after the "Amended" date of the opinion, at 939 A.2d 65, to read:
This opinion was issued originally on December 20, 2007. See District of Columbia v. Mark L. Fitzgerald, 939 A.2d 65 (D.C. 2007). Upon consideration of Mr. Fitzgerald's post-decision petition for rehearing and the supplemental briefs relating to that petition, this opinion is being reissued in amended form. The amended opinion addresses an issue which was not raised during the original appellate proceeding, the jurisdiction of this court to hear this matter.
(3) The ANALYSIS section is modified after the word ANALYSIS, second column, at 939 A.2d 67, to read:
Following the issuance of the original decision in this case, Mr. Fitzgerald filed petitions for rehearing and rehearing en banc, which the District opposed. The Public Defender Service for the District of Columbia ("PDS") requested leave to enter as amicus curiae and to file a brief, in support of Mr. Fitzgerald's petitions. Subsequently, on April 9, 2008, we granted the request of PDS. PDS raised an issue which was not raised during Mr. Fitzgerald's original appellate proceeding, "whether this court lacks jurisdiction to adjudicate this case."*fn2 In our April 9, 2008, order, we permitted the parties, and amicus to submit supplemental briefs on the following questions: "(1) Whether this court had jurisdiction over the District government's appeal, and if not, (2) Whether this court may regard the District's brief as a petition for writ of mandamus to review [Mr. Fitzgerald's] unauthorized sentence." On May 22 and 23, the parties and amicus lodged briefs in response to the order.
In its supplemental brief, the District argues that "this [c]court has jurisdiction over a government appeal of an unauthorized sentence order," and if it does not, this court may "treat the District of Columbia's brief as a Petition for Writ of Mandamus" to "review the [trial court's] unauthorized order refusing to apply the mandatory minimum sentence" in this case. Mr. Fitzgerald argues, in essence, that the District waived its statutory authority to appeal the trial court's decision not to take into consideration his Virginia conviction in sentencing him, and therefore, this court lacks jurisdiction over the District's appeal. He further claims that mandamus is inappropriate in this case. Amicus contends that not only does this court lack jurisdiction over the District's appeal, but also that "this [c]court may not use the extraordinary writ of mandamus under the circumstances presented here. . . ."*fn3
In their analysis of the questions presented for consideration by this court's April 9, 2008, order, Mr. Fitzgerald and PDS insist that there is no statutory basis for a government appeal of appellee's sentence in this case, and hence, this court lacks jurisdiction to hear the District's appeal. They contend that this court's jurisdiction under D.C. Code § 11-721 is limited to orders issued under D.C. Code §§ 23-104 (which is not applicable here), or ...