THOMAS E. JORDAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas Jordan appeals the denial of his motion to correct an illegal sentence, arguing that his life sentence for attempted first-degree murder violates statutory limits because the use of a firearm was an essential element of the underlying attempted armed robbery conviction. The court reverses and remands because the trial court failed to demonstrate that Jordan's claim had been previously decided on the merits.
The court does not reach the merits but reverses and remands because the trial court failed to demonstrate that Jordan's claim had been previously decided on the merits. The trial court must either attach portions of the record showing prior denial on the merits or address the claim on the merits.
[1] A motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a) may not be denied as successive if the record does not demonstrate that the clai…
[2] A conviction for attempted first-degree murder may be reclassified to a life felony under section 775.087(1), Florida Statutes, if a firearm was used and its use is not a…
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Join FLexlaw to unlock all legal intelligence“Under Florida Rule of Criminal Procedure 3.800(a), a defendant is not entitled to successive review of a specific issue that has already been decided on the merits.”
Establishes the legal standard for when successive motions to correct illegal sentences are barred
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Join FLexlaw to unlock all legal intelligenceJordan was convicted of attempted first-degree murder with a firearm and attempted armed robbery. The state pursued two theories of prosecution for th…
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The appellant appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The appellant argues that his life sentence for attempted first-degree murder exceeds the statutory maximum for a first-degree felony.
Appellant specifically alleges that his conviction for attempted first-degree murder with a firearm was improperly enhanced from a first-degree felony to a life felony pursuant to section 775.087(1), Florida Statutes (1989), which calls for the enhancement of a first-degree felony to a life felony where a defendant carries, uses, displays or threatens to use a firearm, if the use of a firearm is not an essential element of that crime. He asserts that the state argued two theories of prosecution to obtain a conviction, one of which was attempted first-degree felony murder. Appellant also notes that he was convicted of attempted armed robbery, which was the underlying felony for the attempted felony murder theory of prosecution. He claims that an essential element of the underlying offense, attempted armed robbery, was possession or use of a firearm; thus, use of a firearm was an essential element of his attempted first-degree murder conviction. As such, he asserts that the reclassification of the crime and the resulting life sentence are illegal. See Traylor v. State, 785 So.2d 1179 (Fla.2000) (holding that a trial court could not reclassify attempted first-degree murder conviction to a life felony based on the use of a deadly weapon where the verdict did not indicate whether the conviction was based on a premeditation or felony murder theory, and where the use of a weapon was an essential element of the underlying charge of armed robbery).
The trial court denied the appellant’s motion as successive, noting that the appellant has filed seven prior motions to correct illegal sentence. Under Florida Rule of Criminal Procedure 3.800(a), a defendant is not entitled to successive review of a specific issue that has already been decided on the merits. See State v. McBride, 848 So.2d 287, 291 (Fla.2003); Fuston v. State, 764 So.2d 779 (Fla. 2d DCA 2000). In the instant case, the trial court attached numerous prior orders denying motions to correct an illegal sentence, but the trial court’s attachments do not demonstrate that the claim was ever addressed on the merits.
The state reluctantly concedes that the court’s attachments do not demonstrate *728that the appellant’s claim has been denied on the merits. Thus, we reverse and remand for the trial court to attach portions of the record indicating that the appellant’s claim has been denied on the merits or to address the claim on the merits. See Walker v. State, 998 So.2d 1196 (Fla. 1st DCA 2009).
REVERSED and REMANDED with directions.
KAHN and DAVIS, JJ., concur.
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Citator
Cited By
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Jordan v. State, 81 So. 3d 595 (Fla. 1st DCA 2012)…PER CURIAM. This is the second time that Appellant has appealed an order ruling on the same underlying rule 3.800(a) motion. In Jordan v. State, 32 So. 3d 727 (Fla. 1st DCA 2010), we reversed and remanded the order denying the motion because the trial court failed to attach documents conclusively refuting Appellant’s facially sufficient claim. Upon remand the trial court granted the motion and stated that…
Authorities Cited
- State v. Antoine L. McBRIDE, 848 So. 2d 287 (Fla. 2003)
- Traylor v. State, 785 So. 2d 1179 (Fla. 2000)
- Fuston v. State, 764 So. 2d 779 (Fla. 2d DCA 2000)
- Davis v. State, 998 So. 2d 1196 (Fla. 1st DCA 2009)