FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D20-3457
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ROBERT W. KRAMER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Clay County.
Michael S. Sharrit, Judge.
September 22, 2021
B.L. THOMAS, J.
Appellant appeals from the denial of a rule 3.800(a) motion to
correct illegal sentence. The appeal is timely. Because Appellant’s
claims are not cognizable in a 3.800(a) motion, the appeal must be
affirmed.
The State charged Appellant with fourteen counts of
possession of child pornography. Each count was a third-degree
felony offense in violation of section 827.071(5), Florida Statutes.
A jury found Appellant guilty on all counts. The criminal-
punishment-code scoresheet produced the lowest permissible
sentence of 52.95 months’ imprisonment. Appellant was 34 years’
old. The trial court imposed consecutive five-year sentences on
each count for an aggregate total sentence of 70 years’
imprisonment. This Court affirmed the judgment and sentence.
The mandate issued on May 5, 2017.
Appellant filed a petition alleging ineffective assistance of
appellate counsel, which this Court denied in August 2019. On
September 4, 2019, Appellant filed the instant motion. The lower
tribunal summarily denied the motion in October 2020. This
Appeal followed.
In his first claim for relief, Appellant argued below that the
trial court improperly considered an unsubstantiated allegation of
capital sexual battery that was pending at that time in a separate
criminal proceeding. The lower tribunal correctly denied
Appellant’s claim as it challenged the procedure leading to the
sentence and not the sentence itself. See Collier v. State,
148 So.
3d 797, 798 (Fla. 1st DCA 2014).
Appellant argues for reversal because the sentence resulted
from a fundamental due process violation. Appellant reads this
Court’s opinion in Robinson v. State,
215 So. 3d 1262 (Fla. 1st DCA
2017), and the Supreme Court’s opinion in Wright v. State,
911 So.
2d 81, 83-84 (Fla. 2005), as authorizing relief. However, neither
case supports finding that a claim based on considering an
improper factor at sentencing, an error addressable on direct
appeal, results in an illegal sentence cognizable in a 3.800(a)
motion.
In Appellant’s second claim for relief, Appellant argued below
that the 70-year sentence constituted cruel and unusual
punishment, violating the 8th Amendment of the United States
Constitution and Article I, Section 17 of the Florida Constitution.
He asserted that it was a de facto life sentence, which was grossly
disproportionate to the third-degree felonies Appellant was
convicted of committing and the 52.95-month sentence Appellant
scored as an appropriate sentence on his criminal-punishment-
code scoresheet. The lower tribunal correctly denied Appellant’s
claim. In doing so, it reasoned that Appellant’s claim was not
cognizable under rule 3.800(a) and would be untimely under rule
3.850.
2
Appellant argues for reversal because relief is available to
correct juvenile sentences on the basis that life without parole
constitutes cruel and unusual punishment, and that rule should
apply equally to Appellant to allow his claim that the aggregate
70-year sentence is cruel and unusual. However, “[a] rule 3.800(a)
motion to correct an illegal sentence is not the proper vehicle for
challenging a sentence on the basis that it violates the
constitutional prohibition against cruel and unusual punishment.”
See Lykins v. State,
894 So. 2d 302, 303 (Fla. 3d DCA 2005)
(quoting State v. Spriggs,
754 So. 2d 84, 84 (Fla. 4th DCA 2000)).
Appellant’s case, like Lykins and Spriggs, calls for a
proportionality review. See Hale v. State,
630 So. 2d 521, 525 (Fla.
1993). The line of cases granting relief to juveniles relied on the
conclusion in Graham 1 and Miller 2 that certain sentences could
not be imposed on the juvenile class of offenders, which led to new
statutory sentencing requirements for juvenile offenders. See
McCrae v. State,
267 So. 3d 470, 472 (Fla. 1st DCA 2019) (rejecting
3.800(a) claim where appellant’s original sentence was not
inconsistent with Graham or Miller). Appellant has not pointed to
any specific prohibition against the sentences imposed in this case.
Appellant’s sentence constitutes a legal punishment. See §
921.0024(2) (“The permissible range for sentencing shall be the
lowest permissible sentence up to and including the statutory
maximum, ....”); 775.021(4), Fla. Stat. (2008) (“Whoever, in the
course of one criminal transaction or episode, commits an act or
acts which constitute one or more separate offenses, upon
conviction and adjudication of guilty, shall be sentenced separately
for each criminal offense; and the sentencing judge may order the
sentences to be served concurrently or consecutively.”).
AFFIRMED.
ROBERTS and LONG, JJ., concur.
1 Graham v. Florida,
560 U.S. 48 (2010).
2 Miller v. Alabama,
567 U.S. 460 (2012).
3
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Robert David Malove of the Law Offices of Robert David Malove,
P.A., Fort Lauderdale, for Appellant.
Ashley Moody, Attorney General, and Heather Flanagan Ross,
Assistant Attorney General, Tallahassee, for Appellee.
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