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Graves v. State

Florida Court of Appeals, Third District

June 6, 2018

Elton Graves, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An 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.

          Elton Graves, in proper person.

          Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.

          Before SALTER, EMAS and LOGUE, JJ.

          PER CURIAM.

         Elton 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 resentencing.

         I. Procedural History and Life Sentence on Count 1

         In an 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 count 4.

         Following 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[1] 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.[2] 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 sentence.

         In Graves' appeal from the conviction and sentence, [3] the 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.

         The 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.[4]

         The 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.

         II. Analysis

         We 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).

         A. The Pertinent Statutes as of 2007

         The 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.

         First, section 782.04(2), Florida Statutes (2007), [5] 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."

         Third, 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, as follows:
(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. ...

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