                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

ROBERT MCMANUS,                      NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D15-2957

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed November 13, 2015.

An appeal from an order of the Circuit Court for Alachua County.
Mark W. Moseley, Judge.

Robert McManus, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.
      Robert McManus appeals the summary denial of his motion seeking

postconviction relief brought pursuant to Florida Rule of Criminal Procedure

3.800(a). For the reasons discussed below, we reverse and remand for further

proceedings.
      In McManus’ rule 3.800(a) motion, he asserted that the life sentence

imposed for his 1982 attempted first-degree murder conviction is illegal pursuant

to Traylor v. State, 785 So. 2d 1179, 1181 (Fla. 2000), which held it was improper

to reclassify attempted first-degree murder to a life felony based upon the use of a

deadly weapon where it was unclear whether the defendant was convicted on a

theory of premeditated murder or felony murder, and the underlying felony

included the use of a deadly weapon as an essential element. McManus pled guilty

to armed robbery with a firearm and first-degree murder, the latter charged

alternatively as pre-meditated murder or felony-murder, and not differentiated in

the plea agreement. The circuit court found, based on Traylor and other authority,

that McManus’ claim has merit, but concluded the motion is barred by collateral

estoppel and the law of the case doctrine.

      Collateral estoppel may bar a successive rule 3.800(a) motion where the

“specific issue . . . has already been decided on the merits.” Holton v. State, 51 So.

3d 1164, 1165 (Fla. 1st DCA 2010) (citing State v. McBride, 848 So. 2d 287, 290-

91 (Fla. 2003)). Similarly, the law of the case doctrine may bar relitigation of an

issue that was actually decided in a previous appeal. See Swain v. State, 911 So. 2d

140, 143 (Fla. 3d DCA 2005) (citing McBride, 848 So. 2d at 290).

      In support of its determination that McManus’ claim is barred, the circuit

court relied on an earlier order denying a rule 3.800(a) motion McManus filed in

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2007. However, the motion itself is not in the record, and the order of denial

frames the claim as asserting the life sentence for attempted first-degree murder

exceeded the applicable statutory maximum. There is no indication the 2007

motion challenged the legality of the reclassification of the offense for use of a

firearm or deadly weapon. Therefore, collateral estoppel does not apply. The law

of the case doctrine does not apply either, because the record does not support the

conclusion that the reclassification issue was actually decided in the ensuing

appeal.

      Accordingly, we reverse the lower court’s order denying McManus’ rule

3.800(a) motion and remand for further proceedings. If the court again summarily

denies the motion, it shall attach record excerpts (e.g., plea or sentencing

transcripts) which conclusively refute McManus’ claim. This denial is without

prejudice to the state’s ability to raise the defense of laches on remand.


      REVERSED AND REMANDED.



WOLF, WETHERELL, and MARSTILLER, JJ., CONCUR.




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