final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Bruce
Anthony McCrae, pro se, Appellant.
Moody, Attorney General, and Kaitlin Weiss, Assistant
Attorney General, Tallahassee, for Appellee.
Anthony McCrae appeals the denial of his petition for writ of
habeas corpus collaterally attacking his 2004 judgment and
sentence. The petition alleged that the circuit court caused
a manifest injustice eight years ago by denying his prior
postconviction challenge that raised the same claim he makes
in the instant petition. The court properly treated the
petition as a motion for postconviction relief under Florida
Rule of Criminal Procedure 3.850 and summarily denied the
motion. We affirm.
was convicted of second-degree murder and sentenced to thirty
years in prison with a mandatory minimum of twenty-five years
for the use of a firearm. This court upheld his conviction
and sentence on direct appeal and mandate issued nearly
fourteen years ago in 2005. McCrae v. State, 908
So.2d 1095 (Fla. 1st DCA 2005).
next year, McCrae filed his first 3.850 motion alleging
ineffective assistance of counsel. The summary denial of that
motion was affirmed on appeal. McCrae v. State, 969
So.2d 1022 (Fla. 1st DCA 2007). Then in 2010, McCrae filed a
second 3.850 motion alleging that the trial court committed
fundamental error when it gave the jury the standard
instruction for manslaughter by act as a lesser included
offense of second-degree murder. McCrae argued that the
instruction erroneously included an intent-to-kill element,
which prevented the jury from properly considering whether to
convict him of manslaughter rather than second-degree murder.
The postconviction court denied the motion as untimely and
successive because it was filed more than two years after his
conviction became final, and although he alleged a new ground
for relief, his failure to raise the jury-instruction claim
in his previous postconviction challenge was an abuse of
process. The court also rejected McCrae's attempt to
circumvent these procedural bars by asserting a claim of
fundamental error under Montgomery v. State, 39
So.3d 252 (Fla. 2010) (holding that giving the standard
instruction for manslaughter by act as a lesser-included
offense of second-degree murder constitutes fundamental
error). The court distinguished Montgomery factually
based on then-controlling precedent from this court and
further concluded that Montgomery did not have
retroactive effect. We affirmed. McCrae v. State, 54
So.3d 494 (Fla. 1st DCA 2011).
years later, McCrae filed the instant postconviction claim
challenging the portion of the court's order that
distinguished his case from Montgomery. He argued
that he is now entitled to relief because the Florida Supreme
Court's decision in Haygood v. State, 109 So.3d
735 (Fla. 2013), quashed the precedent relied on by the court
to deny his 2010 postconviction motion. We disagree.
McCrae correctly argued the law as it relates to
Haygood-overcoming one of the grounds for the denial
of his 2010 motion-McCrae still cannot prevail because the
error in the standard jury instruction was not recognized by
the Florida Supreme Court until after McCrae's conviction
became final. Neither Haygood nor
Montgomery apply retroactively. Kerney v.
State, 217 So.3d 138, 142 (Fla. 3d DCA 2017) (discussing
Haygood); Rushing v. State, 133 So.3d 943,
944 (Fla. 1st DCA 2010) (discussing Montgomery).
This court issued its mandate in McCrae's direct appeal
in 2005-nearly five years before the supreme court decided
Montgomery and over seven years before
Haygood. He therefore cannot rely on those cases to
obtain postconviction relief. And because McCrae is not
similarly situated to other defendants whose cases were not
yet final when Montgomery was decided, denying him
the same relief that those defendants received does not
create a manifest injustice. Cf. Peede v. State, 955
So.2d 480, 498 (Fla. 2007) (holding death row inmate could
not rely on favorable Supreme Court decision that did not
apply retroactively because his sentence became final long
before that case was decided).
extent that McCrae argues retroactivity is not an issue
because his claim is based on the law as it existed at the
time of his trial rather than on a change in the law, the
claim is untimely and successive. See Fla. R. Crim.
P. 3.850(b) & 3.850(h)(2); see also Baker v.
State, 878 So.2d 1236, 1241 (Fla. 2004) (reaffirming
that habeas petitions cannot be used for additional appeals
of issues that could have been raised on direct appeal, or
that have been raised in a previous 3.850 motion).
THOMAS and ...