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McNair v. State

Florida Court of Appeals, Fifth District

April 20, 2018

JAMES McNAIR, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Marion County, Willard Pope, Judge.

          James McNair, Bristol, pro se.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.

          COHEN, C.J.

         James 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.[1] He was sentenced as a three-time violent felony offender ("VFO") and is serving a life sentence.

         In 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, we noted:

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 legal.
. . . .
"[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.

         McNair 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.

         The 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).

         McNair 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."[2] The notation states that the charge was aggravated assault with a firearm. However, the section of the ...


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