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FLORIDA COURT JURISDICTION FOR CRIMINAL POST CONVICTION FILINGS BASED UPON MANIFEST INJUSTICE (2020)


This Article is intended to be for educational use only, and for development of critical thinking regarding the issues presented. Regarding Rule 3.850 Matters specifically, please also see also Honorable Milton Hirsch's "Florida Rule Of Criminal Procedure 3.850: A Monograph", a 158 page Treatise, as found on the University of Miami Website, or simply by typing those terms into a search engine. This article pertains to Court Jurisdiction only, not substantive issues, per se. Due to the fact that the lion's share of old and untimely post conviction filings are summarily dismissed on procedural grounds, it is important to know how to convince a trial court judge that jurisdiction exists to entertain that old motion. Hence, this Article. Although that is generally a daunting task, under the right set of facts and procedural errors made, it is not impossible.

There appears to be much confusion in the State of Florida surrounding the terms "fundamental error" and "manifest injustice", when they can be argued, and in what context. It is abundantly clear that use of those terms, without the proper underlying support, are largely meaningless to a trial court judge, without dotting the i's and crossing the t's in an effort to convince the judge there is jurisdiction first. In that regard, the jurisdiction of the trial court issue is just as important, if not more important, than the actual substantive claims presented to the trial court within the filing.

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There Is No Manifest Injustice Exception To Rule 3.850 Claims In Florida In 2020- Rule 3.850 Fla. R. Crim. P. Significant Rule 3.850 Rule Changes, Effective January 1, 1985- Prior to January 1, 1985, a duplicitous, untimely, or successive 3.850 Motion could not be Denied, unless it was denied on the merits, regardless of whether the claims were identical to previously filed motions, or whether new claims were filed in successive motions, past the two year time limit. The one exception to that rule as stated, was that 3.850 claims that should have, or could have been raised on appeal, were subject to summary denial in the trial court. Prior to January 1, 1985 Rule 3.850 was much more user friendly. “As the foregoing discussion demonstrates, if the summary denial in the instant *1391 case was based upon a determination that the issues raised by the motion either were or could have been presented by direct appeal, or that they were argued in the previous Rule 3.850 proceeding and decided on their merits, then the order denying relief was proper. If, on the other hand, the denial of the motion was based on the supposition that the mere filing of a previous motion for post conviction relief precluded any consideration of a second or successive motion, then the court's order was error.” McCrae v. State, 437 So. 2d 1388, 1390-1391 (Fla. 1983) As would be expected, prior to January 1, 1985, Florida defendants were filing new 3.850 motions whenever new issues came into their heads, or when they hired new attorneys that thought of issues never before presented. The enormity of 3.850 motions filed prior to 1985 lead to abuse provisions promulgated into Rule 3.850 effective January 1, 1985.

“The abuse of the procedure doctrine, as recently codified in rule 3.850, is now expanded to allow a court to summarily deny a successive motion for post-conviction relief unless the movant alleges that the asserted grounds were not known and could not have been known to the movant at the time the initial motion was filed. Further, the movant must show justification for the failure to raise the asserted issues in the first motion. Witt v. State, 465 So.2d 510, 512 (Fla. 1985).” Christopher v. State, 489 So. 2d 22, 24 (Fla. 1986). “Rule 3.850 was recently amended [effective January 1, 1985] and now provides in relevant part: A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant or his attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.” Christopher At 24. “Rules of Criminal Procedure, is procedural in nature and therefore may be applied retroactively.” Id. At 25 The January 1, 1985- 3.850 Rule change was the first time that a trial court judge could summarily deny a 3.850 motion as successive, or based on time barred, and Christopher, supra, gave trial court’s official license from the Florida Supreme Court to do so.

“On The Merits” Legal Definition (Cornell University)-

“The phrase “on the merits” refers to a case whose decision rests upon the law as it applied to the particular evidence and facts presented in the case. This is in opposition to cases whose decisions rest upon procedural grounds. The distinction between decisions that rest on the merits rather than on procedural grounds is important because a decision on the merits is considered final and is thus bound by res judicata. If a decision is bound by res judicata, the parties involved in the case may not later raise those same claims in a subsequent case. Instead, a party that disagrees with the decision must appeal the decision, file a motion for a new trial, or a file a motion to reconsider. Decisions that do not rest on the merits, however, are not bound by res judicata because the claims were not properly heard. Thus, these claims may be brought forth in a subsequent case, excluding dismissals due to a failure to state a claim.” Source: https://www.law.cornell.edu/wex/on_the_merits Essentially, when a trial judge considers a 3.850 claim and applies the facts alleged to the law, before denying the 3.850 motion, regardless of how inept, that legal analysis constitutes a denial on the merits. The trial court will normally consider the very first 3.850 Motion on the merits, and even when it is Denied by written Order, it will be a Memorandum type Denial Order. Once that first Denial happens, all subsequent 3.850 motions alleging the same claims are procedurally barred, and there is no manifest injustice exception for those 3.850 successive claims. The failure to appeal that first denial order then becomes res judicata, and collateral estoppel prohibits raising them again, but only for Rule 3.850 successive 3.850 claims.

Even where a second Rule 3.850 Motion is timely filed, but successive, the trial court will summarily Deny it as procedurally barred, stating that the issues were known when defendant filed the first one.

Although federal courts do not have a 2 year limitation for ineffective assistance of counsel claims, they do have a 1 year procedural limit for ineffective assistance of counsel claims presented in an 18 U.S.C. § 2254 petition, and they absolutely respect a State’s law of the case doctrine on a federal level. "Under the law of the case doctrine, this court is bound by findings of fact and conclusions of law made by the Eleventh Circuit in the direct appeal of this case unless one of the following exceptions applies: “(1) new evidence is presented, (2) there has been an intervening change in controlling law, or (3) the prior appellate decision is clearly erroneous and would result in manifest injustice if implemented.” United States v. Lynn, 385 F. App'x. 962, 965 (11th Cir.2010) (citing Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506, 1510 (11th Cir.1987) (en banc). Pursuant to this doctrine, any claim by Fisher that his sentence was excessive is barred from reconsideration, even if couched as a claim of ineffective assistance of counsel, unless one of the above exceptions applies. See United States v. Hinton, 2010 WL 5071050, *6 (S.D.Ala.2010). No new evidence has been presented nor has there been an intervening change in controlling law, thus, this court must only consider whether the Eleventh Circuit's decision was clearly erroneous and would result in manifest injustice if implemented." Tarlton Jay Fisher v. U.S., 2012WL6680315 SDALA Fisher stands for the proposition that the federal courts will both respect the Florida’s law of the case doctrine, as well as it’s own, without a manifest injustice exception to either, regarding straight ineffective assistance of counsel claims.

Lastly, the federal courts have no manifest injustice exception to ineffective assistance of counsel that is not timely filed by Petitioner, or filed and tolled by Petitioner, standing alone. To that extent, Strickland and Cronic are more of proper standards cases, than licenses exceptions to the law of the case doctrine. Many attorneys and defendants are confused by the use of the term manifest injustice, as creating an exception to an untimely filed Rule 3.850 motion. That term, standing alone, is meaningless; because it has no context.

Rule 3.850 Was Modified Specifically To Dodge The Strickland And Cronic Decisions- The Florida Supreme Court tends to maneuver around a United States Supreme Court decision that it does not like. Always. In the post conviction context, Rule 3.850 was amended after Strickland and Cronic to prevent successive filings based on Strickland and Cronic.

The fact is that Rule 3.850 fully permitted successive 3.850 claim filings, to the extent they were not identical, prior to January 1, 1985. So those lucky souls that filed between May, 1984 and December 31, 1984, got to file new (not previously alleged) Rule 3.850 claims, using Strickland and Cronic as a spring board, regardless of how old the case was. That is why Rule 3.850 changed to it’s present form.

Stickland and Cronic were decided in May, 1984. The Rule 3.850 changes were promulgated after the decisions in Strickland and Cronic. The Christopher case, supra, does not even mention Stickland or Cronic. The Florida Supreme Court has never addressed a manifest injustice exception to Rule 3.850 Fla. R. Crim. P., but did rule that there is a Florida manifest injustice exception to time barred, successive, Rule 3.800 Motions. State v. McBride, 848 So.2d 287 (Fla. 2003), infra.

The State’s official position is that there is no Florida manifest injustice exception to Rule 3.850, and that argument, based strictly on a Florida caselaw, appears to hold water. See State v. Deras, SC11-793. Deras was dismissed after Deras killed himself while appeal was pending, and the Florida Supreme Court never addressed the discretionary review to determine with finality that Florida has no manifest injustice exception to a Rule 3.850 claim.

Bright Line Rule #1: No Florida Manifest Injustice Exception To Rule 3.850 Exists---

Rule 3.800 Fla. R. Crim. P.-

The definition of an illegal sentence is very narrow, and must be provable by examination of the record, without an evidentiary hearing, infra, Dixon. To the extent an illegal sentence requires an evidentiary hearing, it is not a Rule 3.800 issue, but would constitute an unlawful sentence under Rule 3.850, that in circular fashion - has no procedurally barred manifest injustice exception. In other words, if you need an evidentiary hearing to make your claim fly, it is not a Rule 3.800 issue.

Provisional Manifest Injustice Exception To Rule 3.800 Claims-

McBride Spoiler Alert: The Court will not apply a manifest injustice exception to an illegal sentence, IF upon remand, the trial court could impose the same sentence or greater sentence. McBride only works where the sentence must be less on remand.

State v. McBride, 848 So.2d 287 (Fla. 2003) provides a legal exception for Rule 3.800 motions to correct illegal sentence filed as untimely, successive, res judicata, etc.. within certain parameters. Manifest injustice determination is the last prong of the court’s analysis. Defendant must show what amounts to actual prejudice, before the exception will be applied. McBride got all the way to the manifest injustice prong when the FL Supreme Court decided that upon any resentencing Ordered, that McBride could receive a stiffer sentence than the sentence under review, that was originally imposed in a change of plea. McBride therefore could not show manifest injustice exception to the collateral estoppel doctrine, otherwise barring his motion anyway. In sum, McBride’s failure to show actual prejudice foreclosed the possibility for the Court to actually permit McBride to use the manifest injustice exception to collateral estoppel.

McBride stands for the proposition that when there is an illegal sentence, a Rule 3.800 Motion can be filed at any time and the trial court would have jurisdiction to hear the motion, provided there is actual prejudice (meaning that the defendant could not have been sentenced to a harsher sentence, or the same sentence, legally by any conceivable means). Where a defendant is sentenced to less than the statutory maximum, such as in a plea situation, that defendant will not be able to prove actual prejudice, when the trial court could impose a harsher sentence on re-sentencing, such as in an open plea situation. So the McBride Court gave with one hand and took away with the other hand, but at least it’s a foot in the door for the trial court to hear the motion to correct illegal sentence without summarily denying the motion.

Bright Line Rule #2: McBride Is Your Best Friend; If Not Your Only Rule 3.800 Friend In Florida---

Conflicts In Florida Caselaw Is Definitely Your Enemy-

In Coughlin v. State, 932 So. 2d 1224 (Fla. 2d DCA 2006)(holding that "[d]ouble jeopardy challenges to convictions are not cognizable under rule 3.800(a) for two reasons. First, a traditional double jeopardy challenge attacks both the conviction and, by default, the sentence, while rule 3.800(a) is limited to claims that a sentence itself is illegal, without regard to the underlying conviction. . . . Second, permitting defendants to attack their conviction and sentence under rule 3.800(a) would subsume Florida Rule of Criminal Procedure 3.850 into rule 3.800(a), thereby allowing defendants to circumvent rule 3.850's two-year time bar for attacking their convictions and sentences.". Diaz v. Sec., Dept. of Corr., 313 F. App'x 262 (11th Cir. 2009).

Coughlin stands for the proposition that double jeopardy claims have dual error components, one for conviction (judgment) and the other for sentence, where the first is really a 3.850 issue while the second is a 3.800 issue. Coughlin shows that Florida appellate courts will split hairs in to Deny otherwise valid petitions, like double jeopardy, because they are untimely filed in a Rule 3.850 Motion. In years past, there were signs in Florida Courthouses that read “We who labor here seek only the truth”.

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Trying To Make A Chicken Sandwich Out Of Old Rule 3.850 Issues-

The Florida and Federal Courts will look at the law of the case doctrine first to see whether the petition is procedurally barred, based upon the category of error being claimed, infra, Hughes. Once it is determined to be a sentencing error, one must look at McBride up front to determine whether the sentencing error rises to the level of an illegal sentence error, in order to get past the negative caselaw suggesting a procedural bar and summary denial. So there will always be a two-step process for analyzing all post conviction claims that are older than two years past the direct appeal mandate. “Appellant's challenge to his conviction is untimely and procedurally barred, and he cannot circumvent these bars by framing his claim as a challenge to the sentence. The time for filing a post conviction motion challenging the conviction in this case expired in 2005, two years after the judgment and sentence became final on direct appeal. Fla. R. Crim. P. 3.850(b). "Incanting the words “manifest injustice” does not excuse the procedural bars." See Cuffy v. State, ––– So.3d ––––, ––––, 40 Fla. L. Weekly D687, D688, 2015 WL 1214040 (Fla. 4th DCA Mar. 18, 2015).” McClellion v. State, 186 So. 3d 1129, 1132 (Fla. 4th DCA 2016). McClellion is problematic because many egregious ineffective assistance of counsel claims can be re-tooled into fundamental error of the trial court and illegal sentence issues. There is always a flip side to the coin on these issues. The problem with that scenario is that the term fundamental error of the trial court is a largely useless, and meaningless, broad category, Demon, Hughes, infra. Moreover, contrary to popular belief, fundamental error CANNOT be raised at any time. Id. Whereas fundamental error at sentencing may result in an illegal sentence, the only proper category to state is illegal sentence, not fundamental error. Id.

Here is an example of ineffective assistance claims, leading to alleged fundamental error claims, resulting in potential unlawful or illegal sentencing claims:

Hypothetical-

1. Information does not allege an essential element of a crime, and does not allege any reclassification or enhancement statutes. Defense counsel does not object. Standing alone, the State will say that although this could have been a reversible error upon timely objection, that defense counsel can also waive defects in the Information.

2. The same Information errors continue into the charging conference. During trial however, the State amended it’s theory of prosecution, so that the actual prosecution no longer conforms to the Information as charged; so there was an impromptu amendment to the charges without leave of court. This happens routinely. Again there is no defense objection. The trial court must cite elements of offenses charged that are in dispute regarding all matters that must be considered by the Jurors in order to convict, and those particular errors would result in fundamental error. The fundamental error that creates however, is the right to raise the issue on direct appeal for the first time, or the right to raise the issue in a timely filed Rule 3.850 Motion, the first time.

3. The Jury Instruction read omits the same essential element of a crime, which is indeed fundamental error, that would be good for either direct appeal, or even, as a timely filed Rule 3.850 issue, based upon defense counsel’s ineptness.

4. These errors carry through in some fashion to the Verdict Form that is also wrong, because it relates back to a defective Information, using defective Jury Instructions, etc. These types of errors may be claimed as fundamental error to be raised for the first time on direct appeal, or in the very first Rule 3.850 Motion, because defense counsel was inept letting all these egregious things slide by.

5. The appellate attorney does not raise any issues on Appeal, because the trial attorney was inept and did not make any objections to, or record for, anything related to the above-described errors. The State will say that the fundamental error could have and should have been raised on direct appeal and was not, so therefore it was waived. Illegal sentencing issues could also have been identified by appellate counsel and raised on direct appeal; but were not.

6. These Claims can still be raised on a timely filed Rule 3.850 Motion, as well as the fact that the ineffective assistance received resulted in an “unlawful” sentence by the Court. The Rule 3.850 Motion Claims will always require an evidentiary hearing, unless summarily Denied, by definition.

7. Illegal sentences, by definition, do not require evidentiary hearings, which is also helpful identify which Claim alleged should go into which Claim Category of Error alleged. Demon, Hughes, infra. There is no legal reason why a 40 year old illegal sentence cannot be alleged, provided it can be proven, as a matter of law, based on the existing record. Demon, Hughes, infra. In older cases, look for off-the-record hearings, especially charging conferences, off-the-record.

8. Illegal sentence claims that have previously been summarily Denied, or previously Per Curiam Affirmed, can still be raised again, regardless of procedural bars, provided they meet the criteria of McBride, because McBride’s identical illegal sentence claim was raised multiple times first.

9. McBride is Florida’s manifest injustice exception to successive and duplicitous Rule 3.800 filings, provided that upon remand for resentencing, the resentence MUST BE lower than the sentence being appealed. So McBride has that actual prejudice prong of sorts.

10. Without being able to use McBride, presumably because one cannot allege an illegal sentence, one would need to meet the parameters of Florida’s Common Law Writ Of Habeas Corpus, regarding the issues identified above in this example, and to meet the burden as delineated by the Florida Supreme Court in McRae and Montgomery, as cited in Duckworth, infra. That initial burden is for a defendant to show that the trial was fundamentally unfair. Duckworth, infra. The granting of a Common Law Writ Of Habeas Corpus in Florida is rare, and almost always appealed by the State.

Hypothetical Conclusion-

In sum, for time barred, successive, duplicitous, or procedurally barred claims, one will need to implicate either McBride or Duckworth, or both, first, which is possible albeit daunting, in order to claim a manifest injustice exception to procedural bars will otherwise certainly be claimed in a State’s Response. It’s always a good idea to incorporate a jurisdictional memorandum of law into the Motion or Petition to deal with those issues head on, and also, to ask for a jurisdictional hearing should the court be inclined to summarily Deny the Motion or Petition, simply by adopting the State’s Response that proffers to the Court that the filing is procedurally barred.

Trial Courts will most always adopt the recommendation of the State for ALL subsequent Rule 3.850 Motions, and Habeas Corpus Petitions, based upon repetitive claims, regardless of how justiciable the claims are. The trial court does that because the door was left open for the trial court to do just that. The door needs to be closed before the motion/petition is filed, within the four corners of the motion/petition. One need to focus on convincing the trial court to READ the jurisdictional memorandum and GRANTING a hearing on the issue of trial court jurisdiction to hear the filing on the merits. That should be the primary concern while drafting the filing, and just as important, if not more important, than the claims alleged themselves.

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Decisional Caselaw Changes and Retroactivity- Rule 3.850(b)(2)

Florida has adopted the unfair approach that a decisional fundamental error found by the Florida Supreme Court cannot be applied retroactively, unless the Florida Supreme Court says so. First of all, this should not be a Rule 3.850(b)(2) insertion, because this error would also have resulted in an illegal sentence imposed, and otherwise actionable under Rule 3.800.

The current Florida case in point is Weatherspoon v. State, 214 So. 3d 578 (Fla. 2017), regarding the non-existent crime of: attempted felony murder, pursuant to §§ 782.04(1)(a) and 777.04. This fundamental error has been raised dozens of time since 2017 alleging manifest injustice, because dozens of Florida defendants were convicted and sentenced of the non-existent Florida offense of attempted felony murder, pursuant to Florida Statutes § 782.04(1).

Of course the Weatherspoon court did not state that this error could be applied retroactively, so now, the 4th DCA will not permit inmates to use the error for a new trial. The 4th DCA in Johnson v. State, No. 4D18-3528 (Fla. 4DCA 2019) Certified the question: “Does the Change in Decisional Law Announced in Weatherspoon v. State, 214 So. 3d 578 (Fla. 2017), Apply Retroactively to Convictions That Were Final at the Time That Decision Was Rendered?”; that went wholly unanswered by the Florida Supreme Court. If fact, the Florida Supreme Court did not even register a case number for Johnson, as of September 7, 2020. Does that mean that the Florida Supreme Court did not get the request from the 4th DCA yet?

The Florida general rule on retroactivity decisional law changes seems to be: 1.) If an Appeal is active, it can be applied because the conviction is not yet final; otherwise, 2.) The Florida Supreme Court must affirmatively state that it can be applied retroactively.

The federal law appears that it may be different; which states that the law of the case doctrine applies to 18 U.S.C. 2254 claims, unless: “(2) there has been an intervening change in controlling law”, supra, Tarlton Jay Fisher v. U.S., 2012WL6680315 S.D. ALA. This leads one to conclude that changes in decisional law, such as Weatherspoon, could defeat the law of the case doctrine in federal court, to the extent the federal court otherwise had jurisdiction. That is a small distinction, but a distinction nonetheless.

There is always an negative interplay with Florida’s approach to decisional caselaw retroactivity, because, Florida Courts may refuse to permit defendant’s filing manifest injustice petitions to use decisional caselaw, such as Apprendi, because their sentences became final prior to date of the decisional case.

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Otherwise Procedurally Barred Rule 3.800 Motion Claiming An Illegal Sentence-

State v. McBride, 848 So. 2d 287 (Fla. 2003)-

The Law Of The Case Doctrine Is Not A Bar -

A defendant is entitled to relief from a Rule 3.800(a) Motion To Correct Illegal Sentence. This is true regardless of whether the Rule 3.800 Motion is successive or not, and even where a defendant failed to appeal a prior trial court Denial of an identical motion previously filed, because the law of the case doctrine does not bar review by an appellate court that an illegal sentence should be corrected. Id. At 288-289.

“The district court correctly held that the law of the case doctrine does not prevent McBride from relitigating the legality of his habitual offender sentence. That doctrine requires that "questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings." Florida Dep't of Transp. v. Juliano, 801 So.2d 101, 105 *290 (Fla. 2001) (emphasis added). Law-of-the case principles do not apply unless the issues are decided on appeal. Id.; see also Kelly v. State, 739 So.2d 1164, 1164 (Fla. 5th DCA 1999) (holding that "[s]uccessive 3.800(a) motions re-addressing issues previously considered and rejected on the merits and reviewed on appeal are barred by the doctrine of law of the case"). Because McBride did not appeal the previous order denying his rule 3.800 motion, the district court correctly held that the law of the case doctrine does not apply.” Id. At 289 (Italics added)” A defendant’s motion/petition is not barred by the law of the case doctrine, where there are new claims raised by a defendant that have never been raised before by the defendant, because they have not been decided on the merits, or been the subject of any Appeal. McBride At 288-289

The Doctrine Of Res Judicata Is Not A Bar-

Second, the doctrine of res judicata, does not prevent a defendant’s entitlement to relief from a Rule 3.800(a) Motion To Correct Illegal Sentence, or even a successive one, pursuant to the doctrine of stare decisis in Florida on this issue.

“The doctrine [of res judicata] would require a motion to correct an illegal sentence to raise all arguments that the sentence is illegal. Subsequent motions would be barred if they contained arguments that were or could have been raised in the prior motion. Rule 3.800, however, allows a court to correct an illegal sentence "at any time." Florida courts have held, and we agree, that the phrase "at any time" allows defendants to file successive motions under rule 3.800. See Raley v. State, 675 So.2d 170, 173 (Fla. 5th DCA 1996); Barnes v. State, 661 So.2d 71, 71 (Fla. 2d DCA 1995). Thus, rule 3.800 expressly rejects application of res judicata principles to such motions.” McBride At 290 (Italics added) A defendant’s Motion/Petition is not barred by the doctrine of res judicata, because a Rule 3.800(a) motion can be brought “at any time”, through judicial grace, and the doctrine of stare decisis in Florida, specifically permits judicial consideration of a filing, regardless of whether it is ultimately, or successive. McBride At 290.

The Doctrine Of Collateral Estoppel Is Not A Bar-

Third, the doctrine of collateral estoppel could act to preclude a successive Motion To Correct Illegal Sentence, but only where the identical issues were previously raised in a previously filed 3.800(a) Motion, such as in McBride’s case. In the event the doctrine of collateral estoppel is found to apply, the Court must then determine whether the manifest injustice exception to the doctrine of collateral estoppel should be applied. See McBride At 291-292.

Note that the McBride Court specifically held that a manifest injustice exception to the doctrine of collateral estoppel exists in Florida, conferring jurisdiction to the trial court, standing alone. Id. (The same is not true for Rule 3.850 claims untimely filed, supra.)

A defendant’s motion is not barred by the doctrine of collateral estoppel, when the “identical issues” contained in the instant filing were never previously raised in any Rule 3.800 motion or habeas corpus petition previously filed, by definition. Collateral estoppel requires that the identical claims were previously decided on the merits, only.

Even If Collateral Estoppel Were Applicable To A Defendant’s Case, The Manifest Injustice Exception To Collateral Estoppel Would Also Be Applicable Now- “This Court has long recognized that res judicata will not be invoked where it would defeat the ends of justice. See deCancino v. E. Airlines, Inc., 283 So.2d 97, 98 (Fla. 1973); Universal Constr. Co. v. City of Fort Lauderdale, 68 So.2d 366, 369 (Fla. 1953). The law of the case doctrine also contains such an exception. See Strazulla v. Hendrick, 177 So.2d 1, 4 (Fla. 1965). We have found no Florida case holding that such an exception applies to collateral estoppel. Federal courts and other state courts, however, have held that the collateral estoppel doctrine does contain such a manifest injustice exception. See, e.g., Comm'r of Internal Revenue v. Sunnen, 333 U.S. 591, 599 (1948); Thompson v. Schweiker, 665 F.2d 936, 940 (9th Cir. 1982); Tipler v. E.I. duPont deNemours Co., 443 F.2d 125, 128 (6th Cir. 1971); Dowling v. Finley Assocs., Inc., 727 A.2d 1245, 1249 n. 5 (Conn. 1999); Kansas Pub. Employees Ret. Sys. v. Reimer Koger Assocs., Inc., 941 P.2d 1321, 1333 (Kan. 1997); State v. Harrison, 148 Wn.2d 550, *292 61 P.3d 1104, 1109 (Wash. 2003). We agree. We hold that collateral estoppel will not be invoked to bar relief where its application would result in a manifest injustice.” McBride At 291-292 (Italics added) A defendant can legitimately state that illegal sentence claims raised in a Rule 3.800 Motion are either: 1.) not barred by the doctrine of collateral estoppel, because the claims were never previously decided on the merits; or 2.) that even if they were previously decided on the merits, including failure to appeal a previous summary Denial, that the failure of a Court to address the motion on the merits anyway, would result in a manifest injustice, based upon fundamental error making a sentence imposed an illegal sentence. That is the crux of the McBride decision, infra. ---

Florida’s Common Law Writ Of Habeas Corpus As An Independent Basis For Jurisdiction, Based Upon The Doctrine Of Manifest Injustice- Duckworth v. State, No. 3D20-0272 (May 13, 2020), succinctly sets forth historical caselaw relative to the common law writ of habeas corpus in Florida, and why improper jury instructions rising to the level of fundamental error fall within the ambit of the doctrine of manifest injustice jurisdiction of the court, regardless of how old the case is, or whether there was a contemporaneous objection by defense counsel in trial.

"The writ of habeas corpus is a common-law writ of ancient origin designed as a speedy method of affording a judicial inquiry into the cause of any alleged *5 unlawful custody of an individual or any alleged unlawful, actual deprivation of personal liberty." Porter v. Porter, 60 Fla. 407, 409-10, 53 So. 546, 547 (1910). It is "a writ of right," Ex parte Amos, 93 Fla. 5, 11, 112 So. 289, 291 (1927), "enshrined in [the] Constitution [of Florida] to be used as a means to correct manifest injustices and its availability for use when all other remedies have been exhausted has served our society well over many centuries." Baker, 878 So. 2d at 1246 (Anstead, C.J., specially concurring). Accordingly, where improper jury instructions result in a denial of due process, habeas proceedings may afford an avenue for relief. See State v. Montgomery, 39 So. 3d 252, 258 (Fla. 2010), receded from by Knight v. State, 286 So. 3d 147 (Fla. 2019) ("[F]undamental error occurred . . . where [the defendant] was indicted and tried for first-degree murder and ultimately convicted of second-degree murder after the jury was erroneously instructed on the lesser included offense of manslaughter."); see also Walton v. State, 208 So. 3d 60, 65 (Fla. 2016) ("[T]he failure to correctly instruct the jury on a necessarily lesser included offense constitutes fundamental error.") (citations omitted). Here, Duckworth abandoned any preserved challenge to the adequacy of the jury instructions by failing to contemporaneously object. Accordingly, he bears "the burden of proving that the instruction given affected the trial in such a way as to render the trial fundamentally unfair." McCrae v. Wainwright, 439 So. 2d 868, 870- *6 71 (Fla. 1983) (citing United States v. Frady, 456 U.S. 152, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982); Engle v. Isaac, 456 U.S. 107, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982)).” Id. At 5-6 Duckworth is an important current reminder that certain jury instructions are actionable regardless of how old the case is, whether there was a contemporaneous objection or not, whether those issues were deemed waived for failure to raise them on direct appeal or not, and whether in accord with conventional Florida caselaw, those issues raised would otherwise be considered procedurally barred, time barred, or barred by the doctrine of collateral estoppel, vis-a-vis the failure to raise those claims years ago on some first filing.

In Figueroa v. State, 84 So.3d 1158 (Fla. 2d DCA 2012), the court found manifest injustice and granted habeas corpus relief where a conviction was based on a “fundamentally defective” information that failed to allege an essential element of the charged offense. Id. at 1161–62.” Id.(failing to charge Figueroa with possession of a firearm in the body of the Information for the robbery count) Figeroa is an important case to show errors that can permeate an entire trial, making the trial fundamentally unfair in toto.

Figueroa also confuses people, because it crosses Rule 3.850 issues into issues that are actionable by filing a Common Law Writ Of Habeas Corpus instead of a successive Rule 3.850 Motion. Figueroa also stands for the proposition that procedural or substantive due process errors throughout a trial are actionable though habeas corpus.

More Conflict Of Laws- Duckworth Revisited-

“Duckworth abandoned any preserved challenge to the adequacy of the jury instructions by failing to contemporaneously object. Accordingly, he bears "the burden of proving that the instruction given affected the trial in such a way as to render the trial fundamentally unfair..” Duckworth, supra. Nobody really knows what that statement means “to render the trial fundamentally unfair..”. That is because the term fundamental has been overused in Florida caselaw to the point of confusion.

Things that make the trial fundamentally unfair get relief, according to Duckworth, but alleging fundamental error of the trial court as a basis rendering a trial fundamentally unfair, in a post conviction motion is not permitted, where someone says it’s really a Rule 3.850 issue spun into a Rule 3.800 Motion? See Hughes v. State, 22 So. 3d 132 (Fla. 2d DCA 2009), cited by McClellion. Most of the justiciable core issues wind up being round-robin, with circular arguments that are opposite in Florida. Unfortunately, the doctrine of stare decisis in Florida relative to post conviction claims is useless, unless referring to a bright-line, on-point, opinion authored by the Florida Supreme Court. Florida District Courts do not rule in any cohesive manner, relative to manifest injustice claims, presumably because Florida Supreme Court caselaw is lacking or non-existent.

Similarly, a trial court will rarely permit a Rule 3.850 issue presented as an Habeas Corpus claim, in order to bypass Rule 3.850 time limitations. Baker v. State, 878 So. 2d 1236 (Fla. 2004):

"We must,however, take this opportunity to remind those convicted of noncapital crimes in this state that, with limited exceptions, rule 3.850 is the mechanism through which they must file collateral post conviction challenges to their convictions and sentences. By promulgating rule ... over forty years ago, we intended to direct such challenges to the sentencing courts of this state, and to prevent such challenges from being filed in this Court as petitions for writs of habeas corpus." Id. At 1245.

The State will always use opposite and/or ancient historical Florida caselaw to argue that ALL old claims are procedurally barred. How does one claim fundamental error years later, in Florida, when cases like McClellion, infra, are out there stating that the fundamental error illegal sentencing error is really a time barred Rule 3.850 claim in sheep’s clothing? That is the hurdle to overcome.

Here are a few ideas that may work to overcome that hurdle:

1. There are certain things in trial that a trial judge cannot do wrong, because the trial judge is responsible to make sure those things are correct. Focus on fundamental errors connected to sentencing errors rendering a sentence illegal, like reclassification of a felony to life, without the required Interrogatories propounded to the Jurors, or sentences that exceed the statutory maximum, felony reclassification, enhancements, minimum mandatory sentences, and confusion with the trial court.

Apparently it’s not good enough to allege fundamental errors, but errors, like procedural due process errors, must also render the trial to be fundamentally unfair, for purposes of Florida’s antiquated Common Law Writ Of Habeas Corpus petition burden.

These are a few fundamental errors that Florida defendant’s have attempted to allege before, but remember the general rule stated in Hughes, infra, that a fundamental error cannot be raised at any time, per se, but it depends which category of filing the fundamental error falls into: Off the record hearings, improper comments by judge -not neutral arbitrator, judge as a prosecutor, jury instructions wrong- missing essential elements, prosecution does not conform to charging document, constructive amendments, charging document errors, Indictment amendments, always illegal, verdict forms wrong (for reclassification, enhancement), illegal felony reclassifications, illegal habitual reclassifications, wrong year choice of Florida statutes used between Information and Jury Instructions, Jury Instructions don’t conform to charges, multiple offenses charged in one count, failure to read category one lesser included offense, double jeopardy-one offense subsumed into another offense where both sentenced, procedural due process violations in trial, conviction for an offense not charged, verdict form number of counts do not equal charging document number of counts, separation of powers issues, venue, no jurisdiction to impose judgment or sentence, dual theory of prosecution not charged, use of the word “or”, conviction for a crime not charged, or for something that is not a crime, and errors that permeate the trial from start to finish; to name a few. 2. Streamline the filing by dumping the surplusage. Don’t file knowingly old 3.850 successive, duplicitous, procedurally barred issues, because on top of losing those issues straight away, credibility with the court will also be lost. Defense counsel complaints are not valid successive post conviction claims, period, regardless of how incompetent the trial attorney was, however, where the defense attorney is inept in trial, it is more likely that the trial court will make fundamental error on their own. There is no Florida or Federal manifest injustice exception to Rule 3.850 yet, because no Florida or Federal Court has made one yet. Chances are looking good that they won’t make one either, due to finality of conviction considerations.

3. Always file a jurisdictional memorandum in every single case, separately if possible, and always ask for a jurisdictional hearing, in the event the Court intends to summarily Deny a filing as procedurally barred. If that is requested up front, it can only increase the chances that the trial court will take the filing more seriously. Some of these cases should be appealed on jurisdictional grounds to increase the likelihood that an appellate court will affirmatively state that a claim is not procedurally barred, and then to remand it to a trial court for further proceedings. Those sorts of remands in Florida on manifest injustice grounds are few and far in between.

4. Attack conflict of law issues head on, inside the jurisdictional memorandum! If successful, the trial court will need to schedule a jurisdictional hearing, or the Order denying jurisdiction can be appealed by itself. Once your foot is in the door, so is your body, and your argument on the record. ---

Bad Florida Caselaw and More Conflict Of Caselaw-

McClellion v. State, 186 So. 3d 1129, 1133 (Fla. 4th DCA 2016) stated: “The fact that an error is “fundamental,” so that it can be raised on direct appeal despite the lack of objection at trial, does not necessarily mean the error can be raised at any time in a post conviction proceeding.” Id.

The Florida 4th DCA in McClellion misstated the tenets of Hughes v. State, 22 So. 3d 132 (Fla. 2d DCA 2009), that broke down the use of the term “fundamental error” into four (4) historical fundamental error categories in Florida caselaw: 1.) raised for the first time on appeal; 2.) as also related to 3.850 issues enumerated in the Rule itself; 3.) as related to illegal sentences; and 4.) “"the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.".

The 4th DCA completely misstated Hughes, through omission, by stating that fundamental error may never be raised in a (successive) post conviction motion, which is a false. Fundamental error at sentencing will result in an illegal sentence. Fundamental error in trial may result in a fundamentally unfair trial, leading to a Common Law Writ Of Habeas Corpus. Fundamental error in the form of a procedural due process violation may result in the same. So, the dogmatic statement that fundamental error can never be raised in a post conviction motion is there simply to dissuade defendants from filing, and for no other legitimate purpose. The 4th DCA is trying to reduce their appeals by confusing people.

The Hughes case makes logical sense and is an important read for attempting to understand the dichotomy of post conviction type cases, claim types, and vehicles to raise them.

Hughes leaves us with the same conclusions that we determined independently, as stated above, that is:

1. Fundamental errors can be raised on direct appeal for the first time.

2. Fundamental error can be raised in a timely filed Rule 3.850 Motion, but fundamental errors are not an exception to Rule 3.850 ever, and again, there is no Florida manifest injustice exception to ineffective assistance of counsel claims filed pursuant to Rule 3.850.

3. Fundamental error at sentencing is called an illegal sentence, one should use the term illegal sentence, or error resulting in illegal sentence, to clarify this type of fundamental error, as Hughes suggests.

4. Fundamental error like Weatherspoon, supra, when it can be applied retroactively, however, federal law seems to permit substantive law changes without retroactivity spelled out.

How Issues Should Be Categorized- Claiming fundamental error or manifest injustice as a catch all title or category in a post conviction motion will be negatively viewed by all, because it does not help to describe whether the claim is justiciable or not. Moreover, you will leave the claim open to interpretation and the State will file a Response convincing the trial court that the claims are procedurally barred.

The reason that the title “fundamental error” is used so frequently by defendants and attorneys is the mistaken belief that ALL fundamental errors can be raised AT ANY TIME, which is a misnomer. See Hughes v. State, 22 So. 3d 132 (Fla. 2d DCA 2009), citing Demon v State, 775 So. 2d 288, 290 (Fla. 2000).

“There are many types of procedural bars, and we do not attempt to define them all in this decision. For our purposes today, by procedural bar we simply mean that a litigant is prevented from having his or her case reviewed on the merits for one reason or another." [citation omitted] Assuming that such usage of the term "fundamental error" is helpful, which seems doubtful to this court, then the courts will need to establish even narrower lists of errors for such procedural settings as "fundamental error on petition for habeas corpus," "fundamental error in rule 3.850," and "fundamental error in rule 3.800(a)." Id. Sadly, many Florida Appellate Courts would rather keep defendants in the dark about which categories that actionable fundamental errors fall into when writing decisions that are confusing. In other words, one must determine which category of fundamental error relates to a reported case, before that case will have any precedential value. It is entirely possible that the appellate courts write confusing opinions to foster post conviction motion confusion, because clearly they have the ability to write clearer opinions.

In Haliburton v. State, 7 So. 3d 601 (Fla. 4th DCA 2009), the Court wrote this, which at first blush looks like it relates to fundamental error across the board meeting these standards delineated by the 4th DCA in 2009; but it doesn’t:

“ Not All "Fundamental Errors" May Be Raised at Any Time-

A fundamental error has been described as "error which reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Gudinas v. State, 693 So.2d 953, 961 (Fla. 1997). Also, a fundamental error is described as one "where the interests of justice present a compelling demand for its application." Sochor v. State, 619 So.2d 285, 290 (Fla. 1993). Or, "error which goes to the foundation of the case or goes to the merits of the cause of action." Sanford v. Rubin, 237 So.2d 134 (Fla. 1970). The "fundamental error" terminology is typically used in determining whether an error can be raised for the first time on direct appeal despite the lack of an objection at trial. See Maddox v. State, 760 So.2d 89, 95-96 (Fla. 2000). Nevertheless, some errors, which have also been referred to as "fundamental errors," are so serious that they amount to a denial of substantive due process and may be raised at any time including for the first time in a post conviction motion. Hipp v. State, 650 So.2d 91, 92 (Fla. 4th DCA 1995). See, e.g., Moore v. State, 924 So.2d 840, 841 (Fla. 4th DCA 2006) (conviction for a non-existent crime); Pass v. State, 922 So.2d 279, 281 (Fla. 2d DCA 2006) (application of facially unconstitutional statute); Smith v. State, 741 So.2d 576, 577 (Fla. 1st DCA 1999) (violation of the prohibition against double jeopardy). In this post conviction context, the inquiry focuses on whether a manifest injustice will occur if the error is not corrected. See, e.g., Silverstein v. State, 985 So.2d 635 (Fla. 4th DCA 2008); Miller v. State, 988 So.2d 138, 139 (Fla. 1st DCA 2008) (explaining that fundamental error and a manifest injustice result when a defendant is convicted of an offense for which the defendant could not have been convicted as a matter of law).” Haliburton v. State, 7 So. 3d 601, 605-606 (Fla. 4th DCA 2009)(Italics added) The point is this, Haliburton looks like a great case for fundamental error, but in reality, Haliburton’s Claim raised fit into the fundamental error category of Rule 3.850 that is not helpful for a successive or procedurally barred post conviction motion: “the [Haliburton] issue was whether a claim involved a judgment or sentence "imposed in violation of the Constitution or laws of the United States or the State of Florida." Hughes At 137. Haliburton mixes apples and oranges and must have been written to create confusion that way on purpose, because it implies that a manifest injustice exception could apply to Rule 3.850. But in reality, the manifest injustice caselaw cited in Haliburton deals with Rule 3.800 illegal sentences and has nothing to do with Rule 3.850 claims, per se. The result is that many defendants and legal scholars will read Haliburton as revealing a manifest injustice exception to an untimely filed, or successive, or procedurally barred, Rule 3.850 Motion, when in fact, that is not the case.

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What Is An Illegal Sentence Pursuant To Rule 3.800?

“Clearly, an illegal sentence is one that can be addressed at any time. Bedford v. State, 633 So.2d 13 (Fla. 1994). We have previously rejected, however, the contention that the failure to file written findings for a departure sentence constitutes an illegal sentence. See Gartrell v. State, 626 So.2d 1364 (Fla. 1993) (a sentence to less than the guidelines range without written reasons is not an illegal sentence within the meaning of rule 3.800(a)). We reiterate that conclusion here, concluding that an illegal sentence is one that exceeds the maximum period set forth by law for a particular offense without regard to the guidelines. Although we did indicate in dicta, in Whitfield, that the absence of statutorily mandated findings renders a sentence illegal, we did so in summarizing case law that dealt with whether a contemporaneous objection was necessary to preserve an issue for appeal.” Davis v. State, 661 So. 2d 1193, 1196 (Fla. 1995) "

SHAW, Justice, dissenting. I agree that Davis's sentence is not an "illegal sentence" under Florida Rule of Criminal Procedure 3.800, but I disagree with the majority's definition of "illegal sentence.".. ILLEGAL SENTENCE" UNDER RULE 3.800 Florida Rule of Criminal Procedure 3.800 provides that a court may at any point correct an illegal sentence: RULE 3.800 CORRECTION, REDUCTION, AND MODIFICATION OF SENTENCES (a) Correction. A court may at any time correct an illegal sentence imposed by it or an incorrect calculation made by it in a sentencing guideline scoresheet. Fla. R. Crim. P. 3.800(a) (emphasis added). The majority opinion holds that "an illegal sentence is one that exceeds the maximum period set forth by law for a particular offense without regard to the guidelines." Majority op. at 1196. As I understand the majority opinion, the correction of a sentencing error is foreclosed even if it results in an obvious miscarriage of justice so long as the overall sentence falls within the statutory maximum. To my mind, an "illegal sentence imposed by [the court]" means just what it says: a sentence that is in clear violation of established law at the time it is imposed. Cf. State v. Whitfield, 487 So.2d 1045, 1046 (Fla. 1986) ("[T]he absence of the statutorily mandated findings render[s] the sentences illegal.").” Davis v. State, 661 So. 2d 1193, 1198 (Fla. 1995)(Italics added). State v. Callaway, 658 So. 2d 983, 987-988 (Fla. 1995), on Rule 3.800 stated: “In Judge v. State, 596 So.2d 73 (Fla. 2d DCA 1991) review denied, 613 So.2d 5 (Fla. 1992), the court recognized that there are three different types of sentencing errors: (1) an "erroneous sentence" which is correctable on direct appeal; (2) an "unlawful sentence" which is correctable only after an evidentiary hearing under rule 3.850; and (3) an "illegal sentence" in which the error must be corrected as a matter of law in a rule 3.800 proceeding. Id. at 76, 77 n. 1. We recently explained that an illegal sentence is one that exceeds the maximum period set forth by law for a particular offense without regard to the guidelines. Davis v. State, No. 84,155, ___ So.2d ___ [1995 WL 424172] (Fla. July 20, 1995). A rule 3.800 motion can be filed at any time, even decades after a sentence has been imposed, and as such, its subject matter is limited to those sentencing issues that can be resolved as a matter of law without an evidentiary determination.” Davis, (overruled by Dixon v. State, 730 So. 2d 265 (Fla. 1999)(overruled on other grounds) As a practical matter, any Motion To Correct Illegal Sentence should not require an evidentiary hearing, because the error should be clear on the record, from an application of the facts of record to existing caselaw at the time of sentencing.

To the extent that an evidentiary hearing is needed, by definition, the sentencing error is either going to fall into the direct appeal fundamental error category, or the Rule 3.850 fundamental error category. Callaway, supra.

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Increasing Chances Of Success In Florida Post Conviction Filing-

Prong #1: Categories Of Fundamental Error Need To Be Stated With Specificity In All Post Conviction Filings To Increase Chances Of Success, Because Broad Or General Allegations Make It More Likely The Court Will Summarily Deny The Motion/Petition Filed- Prong #1 From Hayes, supra:

1. Fundamental Error raised for the first time on direct appeal;

2. Rule 3.850 listing errors, but only for a timely filed 3.850:

(1) The judgment was entered or sentence was imposed in violation of the Constitution or laws of the United States or the State of Florida. (2) The court did not have jurisdiction to enter the judgment. (3) The court did not have jurisdiction to impose the sentence. (4) The sentence exceeded the maximum authorized by law. (5) The plea was involuntary. (6) The judgment or sentence is otherwise subject to collateral attack. According to Hayes, supra, a defendant will be better served by citing to the 3.850 enumerated relief sections (1)-(6) specifically, than by alleging any broad fundamental error title, per se.

3. Fundamental error at sentencing, claimed in a Rule 3.800 Motion as an illegal sentence.

Although the definition of what constitutes a sentencing error is somewhat nebulous, it appears that there are 3 sub categories of sentencing errors, from Judge v. State, 596 So.2d 73 (Fla. 2d DCA 1991), supra, erroneous sentence (e.g. 10 years for a 3rd degree felony), unlawful sentence (e.g. based on varying factors post evidentiary hearing dealing with a Rule 3.850, ineffective assistance of counsel motion), and an illegal sentence.

Illegal sentences can be corrected in a Rule 3.800 Motion at any time, only because they are illegal as a matter of law from looking at the record, and without the need of an evidentiary hearing, Davis, supra. From a practical standpoint, a Florida trial court judge is more likely to grant a hearing for a Rule 3.800 Motion than an Habeas Corpus Petition stating procedurally barred claims. Moreover, the State is more likely to either agree with the filing or tell you why they disagree with the filing on the merits.

Again, use of the word “fundamental error” should be further categorized and not used in any broad fashion.

4. Decisional caselaw with retroactive application, Weatherspoon, supra, type fundamental claims, is a useless claim, unless and until the supreme court determines it has retroactive application, otherwise, it represents a rabbit hole giving defendant’s false hope. Weatherspoon v. State is the perfect example of false hope. The 4th Certified a Retroactive Applicable Question to the Florida Supreme Court that went unanswered, and as such, is a DEAD issue, unless and until that retroactive application decision is made.

Testing For Retroactive Application- “To summarize, we today hold that an alleged change of law will not be considered in a capital case under Rule 3.850 unless the change: (a) emanates from this Court or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance. Most law changes of "fundamental significance" will fall within the two broad categories described earlier.” Witt v. State, 387 So. 2d 922, 931 (Fla.1980) “The third requirement of the Witt analysis requires that the change of law have fundamental significance. Witt, 387 So.2d at 929. According to the Witt court, decisions which have fundamental significance generally fall into two broad categories: (a) those decisions such as Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), "which place beyond the authority of the state the power to regulate certain conduct or impose certain penalties;" and (b) decisions such as Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which "are of sufficient magnitude to necessitate retroactive application" under the threefold test of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Witt, 387 So.2d at 929.” State v. Callaway, 658 So. 2d 983, 986-987 (Fla. 1995) The long and the short of Florida’s decisional caselaw changes, is that one cannot rely on success based upon Weatherspoon types of cases, because the Florida Supreme Court is a serially proactive only venue, actively seeking to prevent en masse filings from inmates seeking to capitalize on those cases. Now, in the wake of Marsy’s Law, it is even more compelling as a State interest that old convictions be put to rest finally.

5. Procedural and substantive due process errors, including charging document errors, Jury Instructions errors, and Verdict Form errors, rendering the trial fundamentally unfair, supra, Duckworth and Figueroa, actionable in a Common Law Writ Of Habeas Corpus. Where Rule 3.850 issues cross over into these areas they are still actionable, provided they cross into mandatory duties that the trial court fails to perform in trial, as a result. In other words, when defense counsel fails to timely object, the State will say the issue was waived, but where the court has a mandatory duty to perform relating to that same issue, it cannot be waived.

6. Consider also filing pursuant to Florida All Writs Jurisdiction, pursuant to the Circuit Court’s All Writs Jurisdiction provided by Fla. Const. Article V § 5, infra. All though All Writs Jurisdiction does not provide an independent basis for Circuit Court jurisdiction, it may be helpful for overcoming procedural bars alleged by the State. See infra.

Prong #2: Next The Successive Claim Needs To Get Over The Hurdles Of Res Judicata, Law Of The Case Doctrine, And Collateral Estoppel, Before Implicating Any Manifest Injustice Exception Thereto Based on all of the above, the Claim must meet either: 1.) McBride [e.g. an illegal sentence] filed as a Rule 3.800 Claim, with a manifest injustice exception; or 2.) Duckworth, supra, filed as a habeas corpus petition alleging manifest injustice.

Prong #3: The Class of Errors That Constitute an "Illegal" Sentence That Can Be Raised for the First Time in a Post Conviction Motion Decades after a Sentence Becomes Final Is a Narrower Class of Errors than Those Termed "Fundamental" Errors That Can Be Raised on Direct Appeal Even Though Unpreserved. Hughes suggests that the older a case is, the narrower the class of errors there are that can result in a resentencing, based upon an original illegal sentence imposed. Although a nebulous proposition, Hughes does reiterate the proposition that Rule 3.800 Motions can be decided on the merits, as a matter of law, without an evidentiary hearing. When stated in that fashion, neither the State or the trial court has anything to gain by failing to decide the case on the merits. It either is or is not on paper.

Florida All Writs Jurisdiction-A Means To Bolster Circuit Court Jurisdiction-

Article V § 5(b) Fla. Const.

“SECTION 5. Circuit courts.—

(a) ORGANIZATION.—There shall be a circuit court serving each judicial circuit. (b) JURISDICTION.—The circuit courts shall have original jurisdiction not vested in the county courts, and jurisdiction of appeals when provided by general law. They shall have the power to issue writs of mandamus, quo warranto, certiorari, prohibition and habeas corpus, and all writs necessary or proper to the complete exercise of their jurisdiction. Jurisdiction of the circuit court shall be uniform throughout the state. They shall have the power of direct review of administrative action prescribed by general law. History.—S.J.R. 52-D, 1971; adopted 1972.” Id. [Note: this is an All Writs jurisdiction provision of the Circuit Court] Florida’s All Writs Jurisdiction has been successfully used to bolster jurisdiction otherwise barred by the law of the case doctrine in Florida. Florida All Writs jurisdiction should be plead in the heading of post conviction motions and petitions for that reason.

Although the All Writs provision does not create added jurisdiction of the Court, it aids a Court in finding jurisdiction that it would otherwise have, but for, some procedural bar to the filing.

In other words, a filed petition for relief must state an independent source of jurisdiction provided, such as for a Common Law Writ Of Habeas Corpus, as provided in Article V, Section 5(b) Fla. Const., and then the All Writs provision allows the Court to exercise it’s constitutional All Writs authority. This is true even where the jurisdiction otherwise violates the law of the case doctrine. All Writs constitutional provisions appear to defeat procedural bars, including successive filings, collateral estoppel, res judicata, and law of the case doctrine.

Williams v. State, 913 So. 2d 541 (Fla. 2005) discusses the Supreme Court’s All Writs Jurisdiction as follows:

“In the present cases, petitioners seek relief from their sentences and they claim that all writs is a proper remedy under Bedford. We disagree. As noted above, the all writs provision does not constitute a separate source of original or appellate jurisdiction but rather operates in furtherance of the Court's "ultimate jurisdiction," conferred elsewhere in the constitution. The Court in Bedford utilized its all writs authority in order to complete the full exercise of its appellate jurisdiction, which it had exercised earlier in that case. See art. V, § 3(b)( 1), Fla. Const. In the *544 present cases, in contrast, neither Williams nor Curry cites an independent jurisdictional basis that would allow the Court to exercise its all writs authority, and no such basis is apparent on the face of the petitions.” Williams v. State, 913 So. 2d 541 (Fla. 2005) Similarly in the case of Bedford v. State, 633 So. 2d 13 (Fla. 1994), utilizing All Writs Jurisdiction, Bedford was permitted to go back 2-3 times to correct an illegal sentence.

“We exercise our discretion and review Bedford v. State, 617 So.2d 1134 (Fla. 4th DCA 1993). We have jurisdiction under the seldom applicable "all writs" provision of article V, section 3(b)(7) of the Florida Constitution. We previously had jurisdiction of Bedford's kidnaping sentence in conjunction with his appeal from a conviction of first-degree murder and a sentence of death. Bedford v. State, 589 So.2d 245 (Fla. 1991). In that appeal we vacated Bedford's death sentence with directions to impose a life sentence on the murder charge, but affirmed his kidnaping sentence of life which had been one for life without eligibility of parole. Our attention had not been directed to the correctness of the kidnaping sentence.” Id. ... “In reviewing Bedford's sentence we find that the only illegal part of the sentence is the prohibition of eligibility for parole. The judge could legally impose a life sentence in the kidnaping charge, but could not preclude eligibility for parole for kidnaping. The appropriate remedy, therefore, is to strike the provision relative to parole for the kidnaping charge.” Id. In the age of manifest injustice, coming of age in Florida, and in order to bolster McBride and Duckworth, regarding issues that can be filed as Common Law Writs Of Habeas Corpus, it may be prudent to tap into the constitutional provisions for All Writs Jurisdiction as well, to the extent it is an extra tool in the arsenal to defeat law of the case doctrine bars that may otherwise be present, Bedford, supra.

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About The Author And Disclaimer Of Opinions Cited-

Joe Pappacoda was a trial attorney in Florida for 28 years prior to 2018, and is no longer a licensed attorney. Some of that 28 years was spent as a prosecutor and some of that time was spent as a defense attorney in Florida. In 2020 Joe Pappacoda is an Author and provides assistance to Florida Attorneys for special projects, as a paralegal, and on a case-by-case basis, in accordance with Florida law. Joe Pappacoda does not and cannot represent or assist private people in any fashion whatsoever, regarding ANY legal matters.

This Article is solely for informational and educational purposes and does not constitute legal advice of any sort. This Article contains some opinions of the Author, based upon a studied review of the facts in any particular section. Those opinions are the Author’s alone, and are subject to reasonable debate. The opinions presented in this Article are not legal opinions, but rather a common sense opinions from a lay person trying to make heads or tails out of the information contained in this Article. If fact, Joe Pappacoda cannot give legal advice by law, and any such interpretation by any reader hereof, is completely unintended.

The purpose of this Article therefore, is to foster critical thinking by readers and legal scholars regarding the issues presented, in order to improve understanding of the topics and issues presented. On the flip side, if you are a Florida attorney, or College Professor and either disagree with anything written in this Article, or require additional information regarding anything mentioned in this Article, please feel free to contact the Author for an intellectual discussion related to those matters, by calling Joe Pappacoda directly at 954-560-2616, or emailing at GWParalegal@aol.com. © Joe Pappacoda December 1, 2020

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