       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          ANTHONY MCMILLAN,
                              Petitioner,

                                     v.

                          STATE OF FLORIDA,
                             Respondent.

                              No. 4D18-1161

                           [September 5, 2018]

   Petition for writ of habeas corpus to the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Paul L. Backman, Judge;
L.T. Case No. 97-14264CF10A.

   Anthony McMillan, Florida City, pro se.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Senior Assistant Attorney General, West Palm Beach, for
respondent.

PER CURIAM.

    Anthony McMillan has filed a habeas corpus petition challenging his
life sentence imposed in 1999. McMillan claims he is entitled to be
resentenced because the trial court erroneously believed it was required to
impose a life sentence under the habitual violent felony offender (HVFO)
statute. We agree and grant the petition.

    McMillan was convicted by a jury of two counts of robbery with a
firearm and one count of carjacking with a firearm, all first degree felonies
punishable by life. §§ 812.13(2)(a), 812.133(2)(a), Fla. Stats. (1997). The
State argued for an HVFO sentence and stated that “the mandatory is life
as a violent felony offender.” This was incorrect. Section 775.084(4)(b)1.,
Florida Statutes (1997), provides that the court may sentence an HVFO
up to life with a fifteen-year mandatory minimum for a first degree felony.
The trial court agreed with the State that an HVFO sentence was
appropriate and imposed three concurrent terms of life as a mandatory
minimum. 1

    This Court affirmed McMillan’s convictions and sentences on direct
appeal. McMillan v. State, 763 So. 2d 1140 (Fla. 4th DCA 2000). He
subsequently filed several unsuccessful postconviction motions. In one of
those motions, he claimed he was entitled to be resentenced because the
trial court erroneously believed it was required to impose a life sentence
under the HVFO statute. The trial court denied the motion and this Court
affirmed. McMillan v. State, 42 So. 3d 842 (Fla. 4th DCA 2010). McMillan
raises the claim again in this habeas corpus petition.

    We find it clear from the record that the trial court erroneously believed
it was required to impose a life sentence under the HVFO statute, and we
conclude that this is one of the very rare cases where it would be a manifest
injustice not to grant habeas corpus relief. See Prince v. State, 98 So. 3d
768 (Fla. 4th DCA 2012) (granting habeas relief where the trial court
erroneously believed it was required to impose a life sentence and the
appellate court had failed to recognize the error in previous cases);
Johnson v. State, 9 So. 3d 640 (Fla. 4th DCA 2009) (same); see also
Stephens v. State, 974 So. 2d 455, 457-58 (Fla. 2d DCA 2008) (recognizing
that an appellate court has inherent authority to grant a writ of habeas
corpus to avoid “manifestly unfair results”).

   Accordingly, we grant the petition and direct the trial court to hold a
new sentencing hearing.      McMillan is entitled to be present and
represented by counsel at resentencing.

    Petition granted.

WARNER and GROSS, JJ., concur.
CONNER, J., dissents with opinion.

CONNER, J., dissenting.

    I respectfully dissent for several reasons: (1) I do not agree the record
supports a definitive conclusion that the trial court erroneously believed it
was required to impose a life sentence under the habitual violent felony
offender (HVFO) statute, but it is clear the trial judge would have imposed

1 We note, although McMillan does not raise the issue, that the mandatory
minimum terms of life are improper because the HVFO statute only provides for
a mandatory minimum of fifteen years. See § 775.084(4)(b)1., Fla. Stat. (1997);
Stanley v. State, 934 So. 2d 562, 563 (Fla. 4th DCA 2006).

                                      2
a life sentence regardless; (2) as to the imposition of a life sentence,
McMillan’s rule 3.800(a) claim that the trial court erroneously believed it
had to impose a life sentence is barred by collateral estoppel; and (3) in
applying the manifest injustice exception to the collateral estoppel bar to
post-conviction relief, the majority ignores our recent case law. To the
extent any habeas corpus relief should be granted, it should only be to the
extent of striking improper language from the written sentence imposing
the length of the sentence as a mandatory minimum (thus cutting off the
entitlement to gain time) McMillan is not entitled to the full panoply of
rights for a new sentencing hearing. 2

   In July 1997, McMillan committed the three crimes charged in the
instant case, two counts of armed robbery using a firearm and one count
of carjacking using a firearm. As the majority acknowledges, all three
crimes were first degree felonies punishable by life. McMillan had been
released from prison for a prior armed robbery with a firearm just three
years prior to committing the crimes in the instant case.

    Although the majority believes the trial court’s statement during
sentencing that, “the appropriate sentence . . . is life . . . as a violent
habitual offender. That is a mandatory sentence of life with credit for time
for 595 days,” is categorically a statement that the trial court believed it
had to impose a life sentence once it determined McMillan qualified as a
habitual violent felony offender, I contend the trial court’s statement could
also be a confused reference to the fact that a life sentence imposed on a
habitual violent felony offender requires that the offender “shall not be
eligible for release for 15 years,” under section 775.084(4)(b)(1), Florida
Statutes (1999). In my view, the trial court’s other comments at
sentencing clearly demonstrate its intention to sentence McMillan to life
in prison as the appropriate sentence, whether mandatory or not.

    Even if the majority is correct that the trial court was under the
erroneous impression that it had to impose a life sentence once it
determined that McMillan qualified for sentencing as a habitual violent
felony offender, such does not necessarily mean that McMillan is entitled
to a resentencing hearing. In my view, because a life sentence could legally
be imposed, there was no manifest injustice as to the length of the
sentence and rule 3.800(a) relief cannot be granted as to the length of the
sentence. At most, the language that the life sentence was a “mandatory
minimum” sentence is all that can be corrected.


2The written judgment and sentences imposed three concurrent life sentences,
stating “I-III Life FSP cr 590 days ts as ‘violent habitual offender’ w/ life as min
mand 3 yr min mand as to ct III ct’s conc.”

                                         3
    Rule 3.800(a)(2) clearly provides that “a court may dismiss a second or
successive motion if the court finds that the motion 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). A defendant should not be entitled to any
greater post-conviction protection by an appellate court. See Price v. State,
692 So. 2d 971, 971 (Fla. 2d DCA 1997) (noting that “a defendant is not
entitled to successive review of a specific issue which has already been
decided against him”). Rule 3.800(a)(2) is simply a codification of the
doctrine of collateral estoppel. Clearly, collateral estoppel applies as a bar
in this case, since McMillan raised the same issue in this habeas corpus
petition that he raised in a prior 3.800(a) appeal, which was denied on the
merits. See McMillan v. State, 42 So. 3d 842 (Fla. 4th DCA 2010).

    The majority concludes that McMillan’s habeas petition presents “one
of the very rare cases where it would be a manifest injustice not to grant
habeas corpus relief,” citing Prince v. State, 98 So. 3d 768 (Fla. 4th DCA
2012), Johnson v. State, 9 So. 3d 640 (Fla. 4th DCA 2009), and Stephens
v. State, 974 So. 2d 455 (Fla. 2d DCA 2008).

   Prince is simply not binding or even persuasive authority for the instant
case because it is significantly factually different. There, the trial court
imposed a life sentence and clearly stated it was “required” to do so.
Prince, 98 So. 3d at 770. While Prince’s direct appeal was pending, our
supreme court issued an opinion determining that the habitual offender
statute could not operate as an alternative to the sentencing guidelines.
Id. Thus, Prince was a “pipeline” case involving a change in the law. See
State v. Brown, 655 So. 2d 82, 84 (Fla. 1995) (explaining that “pipeline”
cases are those cases not yet final at the time the law changed and to
which the change in the law applies retrospectively). In discussing the
application of the manifest injustice exception to the collateral estoppel
bar in Prince, we relied on Johnson and Stephens, which is problematic, as
will be discussed shortly. Prince, 98 So. 3d at 770-71. Importantly,
though, the “various factors in the record which would support a sentence
significantly less than life in prison” found in Prince, id. at 771, are simply
not present in the instant case.

    The problem with Johnson is the concession in the first paragraph of
the opinion that “[t]echnically the sentence [under review] is not an illegal
sentence.” Johnson, 9 So. 3d at 640-41. Interestingly, in a footnote, the
Johnson panel observed that a “[habitual felony sentence] is correctable as
illegal sentence under rule 3.800(a) only where [the habitual felony
offender] statute in effect at sentencing did not authorize [a habitual felony
offender sentence] for life felonies.” Id. at 641 n.1. If the sentence in
Johnson was not illegal, one wonders how the panel in that case could

                                      4
grant rule 3.800(a) review and relief. A close reading suggests the panel
in Johnson, like the Second District panel in Stephens, felt embarrassed
that this Court did not properly recognize the validity of Johnson’s claim
in a previous appeal, even though the state did not object to the relief
requested. See id. at 642. Additionally, we had granted similar relief for
the same grounds in other cases. Id. (“We agree that it is a manifest
injustice to deny him the same relief afforded other defendants identically
situated.”).

   Similar to Johnson, the panel in Stephens concluded a prior appellate
decision in the case was based on an erroneous understanding of the
record, thus leaving the litigants puzzled about why the case had been
remanded back to the trial court to address a Heggs 3 issue. Stephens, 974
So. 2d at 457. Because the remand instructions directed the parties to
consider the wrong issue, Stephens was deprived of a real opportunity to
have his sentence reconsidered. Id. Acknowledging that it had led the
parties down the wrong path previously, the Second District felt the
situation presented a rare circumstance of manifest injustice. Id. at 457-
58.

    Although it is laudable that appellate courts are willing to admit their
errors in past appeals, the majority’s reliance on Prince, Johnson, and
Stephens cannot be squared with other case law discussing the scope of
rule 3.800(a) relief in the context of enhanced punishment of repeat
offenders. Additionally, the viability of the concept of “manifest injustice”
espoused by Prince, Johnson, and Stephens cannot be squared with more
recent case law discussing the concept.

    In Carter v. State, 786 So. 2d 1173 (Fla. 2001), the supreme court
discussed the evolving definition of “illegal sentence” as it applies to rule
3.800(a) relief. Id. at 1176-78. Carter, who was convicted of a life felony,
received a habitual offender sentence, when the version of section 775.084
in effect at the time of sentencing did not permit habitualization for life
felonies. Id. at 1180. The supreme court concluded he was entitled to rule
3.800(a) relief because the terms and conditions of his habitual offender
sentence were illegal, as a matter of law, because they exceed those
authorized by statute for the underlying offense of second-degree murder
with a weapon. Id. In granting relief, the court approved the definition of
“illegal sentence” that we announced in Blakley v. State, 746 So. 2d 1182
(Fla. 4th DCA 1999), as a sentence which “imposes a kind of punishment
that no judge under the entire body of sentencing statutes could possibly


3   Heggs v. State, 759 So. 2d 620 (Fla. 2000).


                                          5
inflict under any set of factual circumstances.” Carter, 786 So. 2d at 1181
(quoting Blakley, 746 So. 2d at 1187). The supreme court has continued
to approve the definition as recently as 2014 and 2017. See Plott v. State,
148 So. 3d 90, 93 (Fla. 2014); Martinez v. State, 211 So. 3d 989, 991 (Fla.
2017).

    In Brooks v. State, 969 So. 2d 238 (Fla. 2007), the supreme court made
it clear that the appropriate harmless error test to be applied to rule
3.800(a) relief is the “could-have-been-imposed” standard. Id. at 243. In
Martinez v. State, 216 So. 3d 734 (Fla. 4th DCA 2017), we recognized that
in determining whether the manifest injustice exception to the bar of
collateral estoppel applies, the harmless error standard for rule 3.800(a)
relief adopted in Brooks should be considered. Id. at 739 (“The application
of the manifest injustice exception in this case comports with the harmless
error analysis to be applied in analyzing rule 3.800(a) relief.”).
Additionally, we said:

      Manifest injustice occurs only when the application of
      collateral estoppel would result in the defendant serving a
      longer illegal sentence than a restructured legal sentence
      imposed upon remand.

Id. at 740 (emphasis in original). Clearly, if we were to remand the instant
case for resentencing, the trial court could legally re-impose a life
sentence. Thus, in terms of the imposition of a life sentence, there is no
manifest injustice, and rule 3.800(a) relief is not appropriate.

    To the extent the trial court imposed the life sentence for each count as
a mandatory minimum, it was error, because such is a “punishment that
no judge under the entire body of sentencing statutes could possibly inflict
under any set of factual circumstances.” Instead, section 775.084(4)(b)(1),
Florida Statute (2018), clearly provides, with no discretion, that for each
life sentence, McMillan will not be eligible for release earlier than fifteen
years. Thus, this case presents a situation in which the sentencing error
can be rectified by the ministerial act of the trial court correcting the
written judgment and sentences to delete the reference to the life sentences
as mandatory minimums. See Jordan v. State, 143 So. 3d 335, 339 (Fla.
2014) (explaining that the right of presence at sentencing does not exist
where the resentencing “concerns issues that are purely ministerial in
nature” (quoting Acosta v. State, 46 So. 3d 1179, 1180 (Fla. 2d DCA 2010));
Orta v. State, 919 So. 2d 602, 604 (Fla. 3d DCA 2006); Frost v. State, 769
So. 2d 443, 444 (Fla. 1st DCA 2000); Williams v. State, 697 So. 2d 584
(Fla. 4th DCA 1997).



                                     6
   This case highlights the concern we expressed in Martinez:

      Where a defendant has been sentenced on multiple charges,
      there must come a time in which a facially illegal sentence
      must stand, even under rule 3.800(a). After multiple failed
      attempts at redress . . . the sentence should stand so long as
      it is legally permissible on resentencing to reimpose the same
      total years received, using some combination of concurrent
      and consecutive legal sentences.

Martinez, 216 So. 3d at 740. Additionally, we said:

      Resentencing, however, is never “simple” for the victim or the
      victim’s family, particularly where the crime resulted in death
      or severe emotional or physical trauma. If finality means
      anything, it means putting an end to the reopening of old
      wounds. Our judicial system is not designed to achieve
      perfection; it is designed to achieve fairness.

Id. The manifest injustice exception espoused by the majority improperly
expands the narrow reach of rule 3.800(a) relief when it allows a trial court,
decades later, to resentence and impose less than a life sentence, where
the original imposition of a life sentence was legal. Where the trial court
elects not to impose less than a life sentence on resentencing, the
application unnecessarily reopens old wounds.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                      7
