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Rosa v. State

Florida Court of Appeals, Third District

August 14, 2019

John Egan Rosa, 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. 98-5618, Alberto Milian, Judge.

          John Egan Rosa, in proper person.

          Ashley Moody, Attorney General, for appellee.

          Before HENDON, MILLER, and LOBREE, JJ.

          HENDON, J.

         John Egan Rosa ("defendant") appeals the denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), which was entered by the trial court on May 17, 2019. For the following reasons, we affirm.

         On March 22, 2001, a jury found the defendant guilty of two counts of robbery without a firearm (Counts I and II), two counts of aggravated battery on a law enforcement officer (Count IV and V), and aggravated fleeing or eluding a law enforcement officer (Count VI). On April 5, 2001, the defendant's counsel made an ore tenus motion for a new trial based on an erroneous jury instruction as to Counts IV and V (aggravated battery on a law enforcement officer). The trial court recognized that the instruction was erroneous, and asked the parties whether a new trial was required as to all counts the defendant was convicted of or only as to Counts IV and V. At a subsequent hearing conducted on April 10, 2001, the defendant's counsel stated that the trial court should only grant a new trial as to Counts IV and V. The defendant subsequently entered a guilty plea as to Counts IV and V-five years to run concurrently with each other and the other counts.

         The defendant was later sentenced to thirty years in prison as to Counts I and II with a ten-year minimum mandatory as an habitual felony offender and a fifteen-year minimum mandatory as a prison releasee reoffender (PRR); five years in prison as to Counts IV and V; and ten years in prison with a five-year minimum mandatory as a PRR and an habitual felony offender as to Count VI, with all sentences to run concurrently.

         On appeal, this court reversed one of the two counts of aggravated battery on a law enforcement officer (Count V). See Rosa v. State, 847 So.2d 495 (Fla. 3d DCA 2003) (Case No. 3D01-1436). The defendant filed a notice of discretionary review with the Florida Supreme Court, which was denied, and this court issued its mandate in the defendant's direct appeal on April 23, 2004.

         Following the defendant's direct appeal, he has filed in this court various appeals from the denials of postconviction or other motions-3D04-1130, 3D09-2162, 3D11-149, 3D15-2712, and 3D18-216. All of these appeals were affirmed.

         This now brings us to the defendant's latest and sixth appeal following this court's issuance of mandate in his direct appeal, in which he appeals the denial of his rule 3.800(a) motion entered on May 17, 2019. The crux of the arguments raised in this postconviction motion are that: (1) trial counsel erred by agreeing to sever Counts IV and V, and the trial court was without jurisdiction to rule on the post-trial motion because post-trial motions must be made within ten days of the verdict pursuant to Florida Rule of Criminal Procedure 3.590(a); and (2) as the face of the record indicates that the trial court's granting of the motion for new trial as to Counts IV and V was a product of fraud, deceit, collusion, etc., his convictions and sentences for Counts I, II, IV, and VI should be vacated.

         The trial court denied the defendant's latest postconviction motion. We have reviewed the trial court's order, and agree with its determination that the defendant's motion was without merit and duplicative, as he has raised nearly identical arguments in prior postconviction motions. The trial court's order specifically referenced the lower tribunal's order entered on January 10, 2018, which this court affirmed in March 2018 in case number 3D18-216. Moreover, the claims raised by the defendant are not cognizable at any time in a rule 3.800(a) motion, and can only be considered in a timely filed rule 3.850 motion for postconviction relief. The time for filing a timely rule 3.850 motion has long passed. Thus, we affirm the trial court's denial of the defendant's successive and meritless rule 3.800(a) motion for postconviction relief. In doing so, we caution the defendant that his filing of any further frivolous pro se pleadings relating ...


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