       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          CHANCY MALLORY,
                              Appellant,

                                      v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D19-1222

                             [July 10, 2019]

   Appeal of order denying rule 3.800(a) motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Martin S. Fein, Judge;
L.T. Case No. 14-6917CF10A.

   Chancy Mallory, Bristol, pro se.

   No appearance required for appellee.

PER CURIAM.

    Chancy Mallory appeals an order dismissing his motion to correct
illegal sentence filed pursuant to Florida Rule of Criminal Procedure
3.800(a). We affirm but write to clarify the procedural differences between
dismissing successive rule 3.800(a) and rule 3.850 motions.

   Mallory argues that his mandatory minimum twenty-year prison
sentence for attempted second-degree murder is illegal because section
775.087, Florida Statutes, the 10-20-Life statute, does not apply to
attempted second-degree murder. His argument is without merit. See
Hatten v. State, 203 So. 3d 142 (Fla. 2016).

   Mallory has raised the same argument in prior motions. The trial court
properly denied the first motion on the merits. The trial court dismissed
the subsequent motions, including the motion at issue, as successive
under Florida Rule of Criminal Procedure 3.850(h). Although dismissal
was proper, the trial court should have dismissed the motion under rule
3.800(a)(2).
   Rule 3.850(h)(2) permits a trial court to dismiss a successive
postconviction motion under rule 3.850 in the following circumstances:

      (2) A second or successive motion is an extraordinary
      pleading. Accordingly, a court may dismiss a second or
      successive motion if the court finds that it fails to allege new
      or different grounds for relief and the prior determination was
      on the merits or, if new and different grounds are alleged, the
      judge finds that the failure of the defendant or the attorney to
      assert those grounds in a prior motion constituted an abuse
      of the procedure or there was no good cause for the failure of
      the defendant or defendant’s counsel to have asserted those
      grounds in a prior motion. When a motion is dismissed under
      this subdivision, a copy of that portion of the files and records
      necessary to support the court’s ruling shall accompany the
      order denying the motion.

In contrast, rule 3.800(a)(2) permits dismissal of a successive motion to
correct illegal sentence if it “fails to allege new or different grounds for relief
and the prior determination was on the merits.” Fla. R. Crim. P.
3.800(a)(2). “There is no prohibition to the filing of successive rule 3.800(a)
motions so long as the merits of the issue presented have not previously
been addressed . . . .” Perez v. State, 20 So. 3d 440, 442 (Fla. 4th DCA
2009); see also State v. McBride, 848 So. 2d 287, 290 (Fla. 2003) (footnote
omitted) (“Although res judicata may not apply to motions filed under rule
3.800, the similar, but more narrow, doctrine of collateral estoppel, or
issue preclusion, does apply.”).

    The trial court correctly dismissed Mallory’s successive rule 3.800(a)
motion to correct an illegal sentence because it failed to allege new or
different grounds for relief, and Mallory’s argument had previously been
denied on the merits. This was a dismissal based on rule 3.800(a) and not
rule 3.850(h)(2).

   Affirmed.

WARNER, MAY and DAMOORGIAN, JJ., concur.

                              *         *          *

   Not final until disposition of timely filed motion for rehearing.




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