Otis Woodberry v. State of Florida , 2016 Fla. App. LEXIS 1453 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
OTIS WOODBERRY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D15-2143
[February 3, 2016]
Appeal of order dismissing rule 3.800 motion from the Circuit Court for
the Nineteenth Judicial Circuit, St. Lucie County; Dan Vaughn, Judge;
L.T. Case No. 561990CF002943D.
Otis Woodberry, Daytona Beach, pro se.
No appearance required for appellee.
ON ORDER TO SHOW CAUSE
PER CURIAM.
Otis Woodberry has filed a number of untimely collateral challenges to
his convictions. Because he continues to file frivolous pleadings after
receiving a warning and because he has failed to show good cause why
sanctions should not be imposed, we prohibit him from further pro se
filings.
Among other counts, Woodberry is serving thirty years in prison for
attempted first degree felony murder with a firearm and nine life sentences
for robbery with a firearm, kidnapping with a firearm, and burglary of a
dwelling with a firearm for offenses committed in 1990.
In this case, he appealed the dismissal of a rule 3.800(a) motion that
raised challenges to his convictions. The trial court explained its
dismissal. We affirmed the trial court’s order and issued Woodberry an
order to show cause why sanctions should not be imposed for frivolous
filing. Woodberry was previously warned in case 4D10-3806 that further
frivolous filing would result in sanctions.
Ground one of Woodberry’s motion alleged that his sentence for
attempted first degree felony murder with a firearm is illegal because
attempted first degree felony murder is a non-existent crime based on
State v. Gray, 654 So. 2d 552 (Fla. 1995). Ground two alleged that his
sentences for robbery, kidnapping, and burglary were illegally enhanced
based on the use of a firearm. Woodberry complained that these
convictions were based on a principal theory, but he was not charged as a
principal and was not charged with actual possession of a firearm.
The trial court dismissed the motion, explaining that rule 3.800(a)
cannot be used to raise challenges to a conviction, that the time for filing
a rule 3.850 motion had expired, and that a rule 3.850 motion would be
successive. Moving for rehearing, Woodberry argued the court should
have treated his motion as a rule 3.850 motion and allowed him to amend.
Even if his claims had been timely raised in a rule 3.850 motion, they
are without merit.
Woodberry has raised his Gray claim at least three times. Woodberry
v. State, 953 So. 2d 540 (Fla. 4th DCA 2007); Woodberry v. State, 827 So.
2d 1011 (Fla. 4th DCA 2002); Woodberry v. State, 699 So. 2d 699 (Fla. 4th
DCA 1997). Gray, which was decided in 1995, does not apply retroactively.
State v. Woodley, 695 So. 2d 297, 298 (Fla. 1997). Woodberry’s conviction
has been final since the mandate issued on direct appeal in March 1993.
Woodberry v. State, 611 So. 2d 1291 (Fla. 4th DCA 1992). The fact that
he was later resentenced on a postconviction motion did not restart the
time for him to raise postconviction challenges to his conviction. See Jones
v. State, 922 So. 2d 1088, 1090 (Fla. 4th DCA 2006) (recognizing that
collateral proceedings do not toll the time for filing a rule 3.850 motion);
Joseph v. State, 835 So. 2d 1221, 1222 n.3 (Fla. 5th DCA 2003) (observing
that “it would make no sense to allow a judgment to be attacked many
years after the expiration of the two-year deadline simply because a
sentence was corrected pursuant to a rule 3.800(a) motion”).
Regarding his second point, Woodberry acknowledges in his motion
that he was charged with the substantive offenses. The State did not have
to specifically charge a principal theory. See State v. Roby, 246 So. 2d
566, 571 (Fla. 1971). Robbery with a firearm, kidnapping, and armed
burglary are first degree felonies punishable by life. §§ 787.01(2),
810.02(2), 812.13(2)(a), Fla. Stat. (1990). Woodberry was convicted as a
principal. He has not shown that his sentences were improperly
enhanced. See, e.g., Dotel v. State, 175 So. 3d 830, 832 (Fla. 4th DCA
2015).
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Woodberry’s continued filing of procedurally barred and frivolous
claims interferes with this Court’s ability to consider legitimate claims. In
response to this Court’s order, Woodberry failed to show good cause why
sanctions should not be imposed. Therefore, the Clerk of this Court is
directed to no longer accept pleadings filed by Woodberry unless signed by
a member in good standing with the Florida Bar, who certifies that there
is a good faith basis for the claims presented. A copy of this opinion is
also being sent to Woodberry’s prison for consideration of disciplinary
action. § 944.279(1), Fla. Stat. (2015).
WARNER, GROSS and TAYLOR, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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