final until disposition of timely filed motion for rehearing.
Appeal under Florida Rule of Appellate Procedure 9.141(b)(2)
from the Circuit Court for Miami-Dade County, Lower Tribunal
No. 07-43499 Ellen Sue Venzer, Judge.
Graves, in proper person.
Jo Bondi, Attorney General, and Joanne Diez, Assistant
Attorney General, for appellee.
SALTER, EMAS and LOGUE, JJ.
Graves appeals the denial of his motion under Florida Rule of
Criminal Procedure 3.800 for the correction of a life
sentence of imprisonment he contends is illegal. Finding his
position well taken, we reverse and remand the case for
Procedural History and Life Sentence on Count 1
amended information filed in February 2010, Graves was
charged with four counts: (1) attempted second degree murder
of a law enforcement officer engaged in the lawful
performance of his duty; (2) resisting a law enforcement
officer with violence; (3) attempting to deprive a law
enforcement officer of the officer's weapon; and (4)
assault on a law enforcement officer. The alleged crime date
was December 12, 2007. Before trial, the State dismissed
a jury trial, Graves was convicted of counts 1 and 2 and
acquitted as to count 3. Graves was adjudicated a habitual
felony offender ("HFO"). He was sentenced to life
imprisonment on count 1 and ten years on count 2. At the
sentencing hearing, the State and defense both represented to
the trial court that the maximum sentence on count 1 as an
HFO was thirty years, with a ten year concurrent sentence as
an HFO on count 2. The trial court recessed the sentencing
hearing to allow the State and defense to consider the trial
court's reading of the applicable statutes and conclusion
that the maximum sentence on count 1 was life. After that
recess, the State and defense continued to agree that the
maximum punishment for count 1 was 30 years. On the second
page of the sentencing scoresheet, the "maximum sentence
in years" was entered in handwriting to indicate
"30 as HO." Construing section 775.0823, Florida
Statutes (2007), the trial court again concluded that the
maximum sentence on count 1 was life and imposed that
Graves' appeal from the conviction and sentence,
Office of the Public Defender did not raise the count 1
sentencing issue. In 2012 and 2014, Graves filed pro se
post-conviction motions in the trial court alleging that his
count 1 sentence was illegal. In February 2013, the trial
court denied the 2012 motion, concluding that:
The trial court utilized Florida Statutes 782.04 and 775.0823
in determining the range of punishment available to the
defendant at sentencing. The trial court further determined
that in the instant case the Attempted Second Degree Murder
of a Law Enforcement conviction was a first degree felony
punishable by life when interpreting Florida Statutes
775.0823 and 782.04 together. As such, the defendant's
enhancement as a Habitual Offender lawfully made his possible
sentencing range up to Life Imprisonment. As such, the trial
court's imposition of a Life Sentence in State Prison as
a Habitual Offender of count One of the Information was not
in error and was permissible.
defendant did not appeal the trial court's denial of his
2012 motion. In 2014, Graves filed a second motion under rule
3.800(a) that conceded the motion was successive, but
contended that the manifest injustice of the illegal life
sentence merited relief. The trial court adopted the
State's response that the motion was successive and,
because the first order had not been appealed, it was barred
as a matter of collateral estoppel. Graves' appeal to
this Court was unsuccessful.
motion under rule 3.800 at issue in the present case was
filed in 2017. It raised again the alleged illegality of the
life sentence imposed as to count 1. The trial court denied
the motion on three grounds: (1) collateral estoppel, based
on the consideration and denial of his prior motions; (2)
Graves' was properly adjudicated and sentenced as an HFO;
and (3) Graves was given proper notice of the State's
intention to seek HFO sentencing. This appeal followed.
affirm without additional comment the trial court's
rulings on the propriety of notice and adjudication regarding
Graves' status as an HFO. The first issue is more
complex. We are not precluded from review of the legality of
Graves' life sentence on count 1 despite his prior
unsuccessful motions on that issue. State v. Akins,
69 So.3d 261, 268 (Fla. 2011) ("Under Florida law,
appellate courts have 'the power to reconsider and
correct erroneous rulings [made in earlier appeals] in
exceptional circumstances and where reliance on the previous
decision would result in manifest injustice'"
(quoting Muehleman v. State, 3 So.3d 1149, 1165
(Fla. 2009) (alteration in original)). See also Parker v.
State, 873 So.2d 270, 278 (Fla. 2004).
The Pertinent Statutes as of 2007
statutory issue confronted by counsel for the State and for
Graves at the 2010 sentencing hearing-the subject of a recess
in that hearing to permit counsel to consider the trial
court's analysis (which, as noted, counsel for both the
State and Graves were unwilling to endorse)-arises because of
four separate statutes and the history of section 775.0823.
section 782.04(2), Florida Statutes (2007),  defines second
degree murder and provides that the completed offense
"constitutes a felony of the first degree, punishable
for a term of years not exceeding life or as provided in s.
775.082, s. 775.083, or 775.084." Second, section
777.04(4)(c) applies to an attempted second degree murder,
classifying the offense(one degree lower than the completed
offense) as "a felony of the second degree, punishable
as provided in s. 775.082, 775.083, or s. 775.084."
section 775.084 addresses, among other things, the procedure
for, and consequences of, adjudication of a defendant as an
HFO. Subparagraph (4)(a)2 of that statute provides that a
court may sentence an HFO, in the case of a felony of the
second degree, "for a term of years not exceeding
30." Thus, under these three provisions, it is clear
that Graves' maximum sentence for attempted second-degree
murder would be 30 years as an HFO. However, Graves was
convicted of attempted second-degree murder of a law
enforcement officer, and the question presented in this case
is whether, and the extent to which, his maximum sentence is
impacted by section 775.0823, Florida Statutes (2007). The
version of that statute applicable to Graves' 2007 crime
provides in full as follows:
The Legislature does hereby provide for an increase and
certainty of penalty for any person convicted of a violent
offense against any law enforcement or correctional officer,
as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9);
against any state attorney elected pursuant to s. 27.01 or
assistant state attorney appointed under s. 27.181; or
against any justice or judge of a court described in Art. V
of the State Constitution, which offense arises out of or in
the scope of the officer's duty as a law enforcement or
correctional officer, the state attorney's or assistant
state attorney's duty as a prosecutor or investigator, or
the justice's or judge's duty as a judicial officer,
(1)For murder in the first degree as described in s.
782.04(1), if the death sentence is not imposed, a sentence
of imprisonment for life without eligibility for release.
(2)For attempted murder in the first degree as described in
s. 782.04(1), a sentence pursuant to s. 775.082, s. 775.083,
or s. 775.084.
(3) For attempted felony murder as described in s. 782.051, a
sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.
(4)For murder in the second degree as described in s.
782.04(2) and (3), a sentence pursuant to s. 775.082, s.
775.083, or s. 775.084.
(5)For attempted murder in the second degree as described in
s. 782.04(2) and (3), a sentence pursuant to s. 775.082, s.