FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Marion County, Willard Pope,
McNair, Bristol, pro se.
Jo Bondi, Attorney General, Tallahassee, and Carmen F.
Corrente, Assistant Attorney General, Daytona Beach, for
McNair appeals the denial of his motion for postconviction
relief filed pursuant to Florida Rule of Criminal Procedure
3.850. In 2014, McNair was convicted of robbery with a
firearm and burglary of a structure with a firearm following
a jury trial. He was sentenced as a three-time violent
felony offender ("VFO") and is serving a life
2016, McNair filed a motion for postconviction relief under
Florida Rule of Criminal Procedure 3.800(a), alleging that
his sentence was illegal. Specifically, McNair challenged the
use of a 1992 conviction as a predicate offense for his VFO
sentence enhancement. That motion was denied. In affirming,
Although it is not clear from the face of the record that
McNair's sentence is illegal, the records attached to the
trial court's order do not establish that the sentence is
. . . .
"[T]o the extent that there may be records in the
instant proceedings that demonstrate on their face an
entitlement to relief, it was and remains [McNair's]
burden-not the trial court's-to specifically identify
those records." McClain v. State, 157 So.3d
528, 529 (Fla. 1st DCA 2015) (citing Johnson v.
State, 60 So.3d 1045, 1050 (Fla. 2011) ("Under rule
3.800(a), 'the burden [is on] the petitioner to
demonstrate an entitlement to relief on the face of the
record.'" (quoting Williams v. State, 957
So.2d 600, 602 (Fla. 2007))).
McNair v. State, 212 So.3d 1143, 1143 n.1 (Fla. 5th
DCA 2017). Because McNair's claim was not cognizable
under rule 3.800(a), we concluded that it should have been
raised on direct appeal or pursuant to rule 3.850.
Id. at 1143.
then filed a motion for postconviction relief under rule
3.850, alleging that counsel was ineffective for failing to
object to the use of the 1992 conviction as a predicate
offense for VFO treatment. The lower court denied the motion
after an evidentiary hearing. This appeal followed.
issue in this case comes down to what crime McNair pleaded to
in 1992, specifically whether McNair pleaded to aggravated
assault with a deadly weapon or aggravated assault with the
intent to commit a felony. See § 784.021, Fla.
Stat. (1992). The former may be used as a predicate offense
for VFO treatment, while the latter may not. See
§ 775.084(1)(c)1.g., Fla. Stat. (2015) (enumerating
aggravated assault with a deadly weapon as a conviction
qualifying for three-time violent felony offender enhancement
if accompanied by other qualifying offenses).
was charged in the 1991 case with robbery with a firearm and
aggravated battery with a deadly weapon. He entered into a
plea agreement, the language of which is critical to
McNair's argument. The plea agreement reflects that
McNair agreed to plead no contest to aggravated assault, and
the State would nolle pros the robbery charge. The agreement
does not state what would occur with the aggravated battery
charge. McNair would receive one year of community control,
followed by two years of probation. A handwritten note signed
by the trial judge appears in the margin of the plea form,
with an arrow to the section reflecting charges in the
"amended information." The notation states that the
charge was aggravated assault with a firearm. However, the
section of the ...