ROBERT G. MACKAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Mackay appeals the summary denial of his habeas corpus petition challenging his 1987 capital sexual battery conviction, arguing the jury verdict failed to find he was over eighteen years old as alleged in the information. The court affirms the denial, finding no fundamental error where the age element was not in dispute, but allows Mackay to file a new postconviction petition if he can prove his actual birth date was 1958 rather than 1953.
The omission of the age element from jury instructions and verdict is not fundamental error under Glover v. State when the element is not in dispute and the defendant alleges no manifest injustice. However, because Mackay failed to allege in his initial petition that he was actually under eighteen, the court affirmed the summary denial but allowed him to file a new postconviction petition with a certified birth certificate proving he was born in 1958.
[1] The omission of an element from jury instructions is not fundamental error when that element is not in dispute.
[2] A postconviction court should not treat a new filing as a matter resolved by a prior appeal if the new filing presents new evidence and allegations not previously conside…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the omission of this element, even from the jury instructions, is not fundamental error when the element is not in dispute”
Establishes the legal standard that an uncontested element's omission from jury instructions does not constitute fundamental error warranting habeas relief.
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Join FLexlaw to unlock all legal intelligenceMackay was convicted of capital sexual battery in 1987 for an event occurring between late 1974 and mid-1975. The information alleged he was over eigh…
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The Appellant’s motion for rehearing is denied. In order to address a new matter raised in the motion for rehearing, we are withdrawing the prior opinion dated August 29, 2014. The attached opinion is issued in its place, which contains an additional paragraph at the end. No further motions for rehearing will be entertained.
Robert G. Mackay appeals the summary denial of his petition for writ of habeas corpus, which the postconviction court treated as a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We write briefly to explain that the petition would be meritless even if treated as a properly filed petition for habeas corpus.
For an event that occurred sometime between late 1974 and mid-1975, Mr. Mac-*548kay was convicted of capital sexual battery in 1987. He filed this petition in the court of conviction in 2013. He claims he is entitled to release because the jury’s verdict did not find that he was over the age of eighteen even though that element was alleged in the information.
He is correct that the information alleged that he was over the age of eighteen and that this element was not a finding that the jury was required to make on the verdict form. But Mr. Mackay does not allege that he was under the age of eighteen at the time of this event. It appears that he was over the age of twenty at the time of this event. As explained in Glover v. State, 863 So.2d 236 (Fla.2003), the omission of this element, even from the jury instructions, is not fundamental error when the element is not in dispute. Mr. Mackay has alleged no claim of manifest injustice in his petition.
In a motion for rehearing filed in this court, Mr. Mackay claims under oath that his date of birth is November 27,1958, and that the State was mistaken in believing that his date of birth was November 27, 1953, when it prosecuted him in 1987. If his claim is true, he would have been sixteen at the time of the offense alleged in the information. Because he did not make this allegation in his petition to the post-conviction court, we deny rehearing. If Mr. Mackay files another postconviction proceeding attaching a certified copy of his birth certificate demonstrating that he was born in 1958, the postconviction court should not treat that filing as a matter resolved by this appeal.
Affirmed.
SILBERMAN and VILLANTI, JJ„ Concur.
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Citator
Cited By
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Mackay v. State (Fla. 2d DCA 2021)
Authorities Cited
- Glover v. State, 863 So. 2d 236 (Fla. 2003)