BRITISH MOSS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the appellant's motion to correct an illegal sentence was frivolous and previously litigated, and his Apprendi claim was procedurally barred.
[1] A claim that has already been litigated, denied, and affirmed on appeal cannot be considered again in a subsequent motion.
[2] A defendant who did not object to a sentencing departure at the hearing and did not raise the constitutional issue on direct appeal cannot raise it in a post-conviction m…
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Join FLexlaw to unlock all legal intelligenceThe appellant filed a motion to correct an illegal sentence, arguing it was illegal based on Heggs v. State and Apprendi v. New Jersey. This claim had…
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PER CURIAM.
British Moss appeals a lower court order denying his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm.
Moss’s Current Motion
Moss’s current motion, like the one filed with the trial court eight months before, argues that his sentence is illegal on the basis of Heggs v. State, 759 So. 2d 620 (Fla.2000). This claim has already been litigated, denied, and affirmed on appeal. See Moss v. State, 937 So. 2d 673 (Fla. 3d DCA 2006). We will not consider it again. See Goodman v. State, 984 So. 2d 607 (Fla. 3d DCA 2008).
Moss also contends that because his judgment and sentence were pending when the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), he is entitled to relief. We disagree. Moss did not object to a departure during his sentencing hearing and did not raise the constitutional issue on direct appeal. He may not do so now. See Evans v. State, 946 So. 2d 1, 15 (Fla.2006); Burton v. State, 969 So. 2d 1087, 1088-89 (Fla. 5th DCA 2007). Order to Show Came
It has been ten years since Moss was convicted, and nine years since his sentence was imposed. In that time, Moss has filed numerous petitions and postcon-viction motions.1 In each case, we have either denied Moss’s original filings in this Court or affirmed the trial court’s denial of his filings there.
On June 19, 2008, we issued an order to show cause why Moss should not be prohibited from further pro se filings in this Court. After considering his response and the State’s reply, we find that Moss’s motion below and appeal here are frivolous. Further frivolous or previously-rejected pro se filings by Moss regarding circuit court case 98-37639 may subject him to appropriate sanctions. See State v. Spencer, 751 So. 2d 47, 48 (Fla.1999).
Affirmed.
. This Court has seen Moss — or his alias, Quincy Phillips — a total of seven times: 3D99-2724; 3D01-2666; 3D02-879; 3D02-3221; 3D05-2285; 3D07-301; and, this case, 3D08-963.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000)
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- State v. Spencer, 751 So. 2d 47 (Fla. 1999)
- Wydell Jody Evans v. State, 946 So. 2d 1 (Fla. 2006)
- Goodman v. State, 984 So. 2d 607 (Fla. 3d DCA 2008)
- Burton v. State, 969 So. 2d 1087 (Fla. 5th DCA 2007)