Joseph Turner v. State

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JOSEPH B. TURNER,
Appellant,
v. Case No. 5D18-428
STATE OF FLORIDA,
Appellee.
________________________________/
Decision filed June 22, 2018
3.800 Appeal from the Circuit Court
for Brevard County,
Kelly J. McKibben, Judge.
Joseph B. Turner, Carrabelle, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Allison L. Morris,
Assistant Attorney General, Daytona
Beach, for Appellee.
PER CURIAM.
AFFIRMED.
COHEN, C.J., and WALLIS, J., concur.
LAMBERT, J., concurs specially, with opinion.
LAMBERT, J., concurs specially. 5D18-428
Joseph B. Turner is appealing the postconviction court’s summary denial of his
successive Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence.
He is presently serving a twenty-year prison sentence as a habitual violent felony offender
(“HVFO”) for robbery, consecutive to a lengthy prison sentence that he is serving in an
unrelated case. Turner was also designated and sentenced to serve fifteen years in
prison as a prison releasee reoffender (“PRR”) for the robbery conviction. By statute,
Turner is required to serve 100% of the PRR portion of his sentence. See §
775.082(9)(b), Fla. Stat. (2003).
In the present appeal, Turner argues, as he did below, that his written judgment
and sentence is illegal because it also contains a ten-year minimum mandatory provision
regarding his HVFO sentence that was not orally pronounced by the trial judge at
sentencing. See Regino v. State, 921 So. 2d 845, 845 (Fla. 2d DCA 2006) (reversing
postconviction court’s denial of defendant’s rule 3.800(a) motion because the trial court
did not orally pronounce a minimum mandatory term for the HVFO sentence).
Turner unsuccessfully raised this same claim in an earlier rule 3.800(a) motion to
correct illegal sentence. We affirmed Turner’s appeal of that denial order without opinion.
See Turner v. State, 228 So. 3d 581 (Fla. 5th DCA 2017). In denying Turner’s present,
successive rule 3.800(a) motion, the lower court correctly recognized that while the filing
of successive rule 3.800(a) motions is not forbidden, see White v. State, 41 So. 3d 257,
257 (Fla. 3d DCA 2010), a defendant is barred by the doctrine of collateral estoppel from
relitigating the same issue raised in an earlier rule 3.800 motion decided adversely to the
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defendant. See State v. McBride, 848 So. 2d 287, 290−91 (Fla. 2003). Accordingly, I
agree with the court’s denial of Turner’s instant motion based upon collateral estoppel.
Turner separately argues that collateral estoppel should not act as a bar when
doing so would cause a manifest injustice. However, even if Turner’s sentence is illegal
for the reason that he argues, “the mere existence of an illegal sentence is not equivalent
to a manifest injustice.” Dennard v. State, 157 So. 3d 1055, 1056 (Fla. 4th DCA 2014).
For example, in McBride, the court held that the application of collateral estoppel to bar
the defendant’s rule 3.800(a) claim of illegal sentence would not result in manifest
injustice because although the defendant’s habitual felony offender sentence on one
count was illegal, he was serving concurrent prison terms of equal length on other counts.
848 So. 2d at 292.
Here, there is no manifest injustice. Turner is serving fifteen years in prison, day-
for-day, as a PRR. Whether his HVFO sentence does or does not include a ten-year
minimum mandatory provision has no effect on Turner’s longer PRR sentence or the
amount of time Turner will serve in prison, nor has he alleged that it will.
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