HERBY LUMA
v.
THE STATE OF FLORIDA
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The appellate court affirmed the denial of a motion to correct an illegal sentence, finding the original sentence and subsequent re-sentencing were legally authorized. The court also issued an order to show cause why the appellant should not be prohibited from filing further pro se pleadings due to his repeated filings.
The appellate court held that the trial court correctly denied the motion to correct the sentence because the original sentence and the 2012 re-sentencing were legally authorized. The court also found grounds to issue an order to show cause why Luma should not be prohibited from further pro se filings.
[1] A motion to correct an illegal sentence cannot be used to challenge a sentence that was authorized by law.
[2] A prior sentencing determination, affirmed on appeal, may be relied upon in a subsequent sentencing hearing if the purpose of the subsequent hearing is limited.
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Join FLexlaw to unlock all legal intelligence“at this stage, Luma may not use a rule 3.800 motion to challenge either his 1998 sentence or his 2012 re-sentencing, as they were authorized by law”
This quote explains the court's primary reason for affirming the denial of the motion to correct the sentence.
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Join FLexlaw to unlock all legal intelligenceHerby Luma was convicted in 1998 of multiple felonies and sentenced as a violent career criminal. He has since filed numerous appeals and motions chal…
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PER CURIAM.
Petitioner Herby Luma (a/k/a Ronet Bastien, a/k/a Jay Eric Hudges) appeals an order of the Miami-Dade County Circuit Court, dated May 9, 2019, titled, “Order
Denying Defendant’s Successive Motion to Correct Illegal Sentence.” For the reasons stated herein, we affirm this order and issue an order to show cause.
On May 6, 1998, in lower tribunal case number 97-29656, a jury found Luma guilty of seven counts of burglary, grand theft, criminal mischief and possession of burglary tools.
The trial court sentenced Luma on the two burglary counts to forty years in prison, with a thirty-year minimum mandatory sentence, determining that Luma was a violent career criminal pursuant to section 775.084(1)(c) and (4)(c) of the Florida Statutes (1997). This Court affirmed the sentence in Luma v. State, 739 So. 2d 709 (Fla. 3d DCA 1999). Since his conviction, Luma has filed numerous appeals and petitions to this Court1 to correct what he considers to be an illegal sentence.
This Court’s records indicate an additional petition in case number 3D16-255, whose outcome is not reported. Further, in December of 2014, the circuit court issued a rule to show cause why Luma should not be prohibited from filing additional pro se pleadings, but the circuit
The record reflects that, in 2012, the circuit court granted Luma a new sentencing hearing.
The trial court again determined that Luma was a violent career criminal, as defined in section 775.084 of the Florida Statutes, and again sentenced Luma to a forty-year term, with a thirty-year minimum mandatory. We have considered Luma’s appeal in the instant case and have reviewed a record that is distinctive for its repetition.
We agree with both findings of the trial court: (1) at this stage, Luma may not use a rule 3.800 motion to challenge either his 1998 sentence or his 2012 re-sentencing, as they were authorized by law, see Paris v. State, 156 So. 3d 578, 578 (Fla. 3d DCA 2015); and (2) it was not necessary for the State to re-introduce evidence at the 2012 hearing in view of the trial court’s limited purpose of determining whether it would exercise discretion to impose an alternate sentence. ORDER TO SHOW CAUSE
Luma is hereby directed to show cause, within forty-five days of the date of this opinion, as to why he should not be prohibited from filing further pro se appeals, petitions, motions or other pleadings related to his convictions in lower tribunal case number F97-29656.
court appears not to have followed through with a final order. This led to two more appeals to this Court in Luma v. State, 237 So. 3d 1126 (Fla. 3d DCA 2018) and Luma v. State, 208 So. 3d 226 (Fla. 3d DCA 2016).
If Luma does not demonstrate good cause, we will direct the Clerk of this Court not to accept any such filings unless they have been reviewed by, and bear the signature of, a licensed attorney in good standing with the Florida Bar. Affirmed; order to show cause issued.
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Markland v. State, 197 So. 3d 1138 (Fla. 3d DCA 2016)…. Markland an opportunity to respond, this Court may prevent such further filings. See id. Petition denied. . Post-conviction appeals filed by the defendant include: Markland v. State, 166 So. 3d [*1139] 791 (Fla. 3d DCA 2015); Markland. v. State, 160 So. 3d 440 (Fla. 3d DCA 2015); Markland v. State, 129 So. 3d 1078 (Fla. 3d DCA 2013); Markland v. State, 88 So. 3d 950 (Fla. 3d DCA 2012); Markland v. State, 45 So. 3d 469 (Fla. 3d DCA 2010); Markland v. State, 6 So. 3d 68 (Fla. 3d DCA 2009); Markland v. State…
Authorities Cited
- Rhondel Paris v. State, 156 So. 3d 578 (Fla. 3d DCA 2015)
- Barzialy v. Guardianship of Goldszer, 77 So. 3d 1268 (Fla. 3d DCA 2012)
- Alfonso v. Orna Sec. & Fla. Unemployment Appeals Comm'n, 903 So. 2d 302 (Fla. 3d DCA 2005)
- Herby Luma v. State, 208 So. 3d 226 (Fla. 3d DCA 2016)
- Luma v. State, 225 So. 3d 821 (Fla. 3d DCA 2017)
- Garris Perry v. Surgery Ctr. OF Aventura, 237 So. 3d 1126 (Fla. 3d DCA 2018)