         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D18-0838
                 _____________________________

MIGUEL SIERRA,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Leon County.
Angela C. Dempsey, Judge.

                      September 5, 2018


PER CURIAM.

    AFFIRMED.

BILBREY and OSTERHAUS, JJ., concur; B.L. THOMAS, C.J., concurs
with opinion.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.

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B.L. THOMAS, C.J., concurs.

     This court has never addressed the merits of Appellant’s
case. Because the public deserves a written opinion in cases in
which a criminal defendant is convicted of a serious violent crime,
receives a sentence of life imprisonment and claims that his or
her sentence is legally invalid, I provide the following explanation
of my views in this case.

    In January 2004, Appellant unlawfully entered the victim’s
home and waited for her to arrive. When the victim entered her
home, she saw two feet sticking out from behind a kitchen door.
Thinking it must be someone she knew, the victim instinctively
and momentarily relaxed, before seeing a man covered in a
blanket, except for his shoes, standing in her kitchen. The man,
Appellant, then forcibly covered the victim with the blanket,
threw her on the kitchen floor, and tried to cover the victim’s face
so she could not see her assailant. The victim fought off
Appellant’s attempts to cover her face with the blanket.

     Appellant then choked the victim to force her to cease
resistance. Appellant choked the victim so hard she briefly
blacked out.

     Appellant then pulled the victim from the kitchen floor and
forced her to walk down into her dining room, all the while
promising “not to hurt” her. When the victim again resisted,
Appellant threw the victim on the floor of her hallway and again
violent choked her. (As the victim testified to these events, she
repeatedly cried during the trial.)

     Appellant then again pulled the victim from the floor. The
victim testified that she tried “to make him stop having control”
over her. Appellant then pushed the victim toward her guest
bedroom. The victim testified that she went into shock, “because
I know what he’s going to do. And so I tried to think of
something.” The victim testified that she told Appellant she had
to use the bathroom. She then told Appellant that she had just
begun her menstrual cycle and said to Appellant “you don’t want
to do this.”


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     As Appellant forced the victim into her guest bedroom, she
saw “how the bed was arranged,” and “I knew [Appellant] was
going to rape me.” When questioned how she knew this, the
victim testified that Appellant had tied the victim’s dog leashes to
the footboard of the bed and placed Vaseline next to the bed.
Appellant threw the victim onto the bed, where she struggled
again to escape. The two fell on the floor, and Appellant looked
at the victim as if she had caused the fall, motivating her to deny
that she caused Appellant to fall off the bed. She told him this to
stop him from hurting her.

     Appellant then pressed his bodyweight against the victim’s
chest on the bed and tied up her hands to the bed. As she
continued to resist, Appellant repeatedly struck the victim in the
face. He hit her so hard, she was temporarily blinded.

     The victim then stopped resisting, because “it hurt so bad
[and] I was so afraid of what he would do if I didn’t stop.”
Appellant tied up both the victim’s hands to the bed’s foot board.
Appellant then disrobed the victim and removed a sanitary
napkin from the victim’s body. He then performed oral sex on the
victim. Appellant then told the victim to close her eyes and he
committed forcible sexual intercourse with the victim. Thinking
this terrifying ordeal was over, Appellant then started the
process over again. Appellant then placed a knife near the victim
while he committed additional sexual batteries against the
victim. The victim testified that when she saw the knife, she
thought Appellant was going to “either kill me or hurt me. I was
scared to death.” The ordeal lasted two hours.

     Appellant then stole some of the victim’s belongings and the
victim’s car. He was quickly apprehended not far from the
victim’s home.

     At trial, the State presented evidence that demonstrated
Appellant’s DNA was found on the victim’s body. Appellant’s
fingerprints were also identified in the victim’s home. The
victim’s face was injured and battered from Appellant’s violence
against her.



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     Appellant testified that the victim consented to the sex and
made false accusations against him, because she had owed him
money for drugs and he asked for the money after the consensual
sex. He also testified that he never struck the victim in her face,
and she did not receive those injuries during the consensual sex.
He claimed the victim’s belongings found in his possession were
“collateral” for the drug debt.

     The jury found Appellant guilty of all charges: 1) kidnapping
to facilitate a felony; 2) sexual battery; 3) sexual battery with a
deadly weapon; 4) sexual battery with a deadly weapon;
5) burglary of a dwelling while armed; 6) grand theft; and
7) sexual battery with a deadly weapon.            The trial court
sentenced Appellant to life imprisonment on counts one, three,
four and seven; 15 years in prison on count two; 30 years in
prison on count five; and 5 years in prison on count six. All
sentences were imposed concurrently, except the sentence for
count five, burglary while armed, was imposed consecutively to
the sentences imposed concurrently to each other. This Court
affirmed Appellant’s conviction and sentence without opinion in
Sierra v. State, 919 So. 2d 441 (Fla. 1st DCA 2005).

     Appellant filed his first collateral motion under Florida Rule
of Criminal Procedure 3.850, asserting twenty claims, which the
trial court denied. This court affirmed the denial of relief in ten
claims but reversed to allow Appellant to amend ten insufficient
claims. Sierra v. State, 993 So. 2d 1064 (Fla. 1st DCA 2008). On
remand, Appellant raised only three claims, which were denied
by the trial court, and this Court affirmed, without opinion.
Sierra v. State, 53 So. 3d 1031 (Fla. 1st DCA 2011). Appellant
then filed another collateral claim, which the trial court denied
and this Court affirmed, again without written opinion. Sierra v.
State, 86 So. 3d 1122 (Fla. 1st DCA 2012).

     Appellant now files yet another collateral claim under rule
3.850, asserting that his conviction for kidnapping to facilitate a
felony was a violation of due process, “because the movement and
confinement of the victim was inconsequential or inherent in the
sexual battery offense.” He also asserts that his multiple
convictions for sexual battery violated double jeopardy and due
process. He also asserts that clearing the courtroom was a

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violation of his right to a public trial, despite his agreement to
the procedure.

     All of Appellant’s claims are time barred. Florida Rule of
Criminal Procedure 3.850 requires all collateral claims filed
under that rule to be filed within two years after a defendant’s
convictions become final, and this time period expired just under
ten years ago, as mandate issued on this Court’s decision
affirming Appellant’s convictions and sentences on January 12,
2006, and the instant motion was filed on January 4, 2018. His
claim that the closed-courtroom procedure was a “manifest
injustice” does not constitute grounds to avoid the time
limitations under rule 3.850(b). Fla. R. Crim. P. 3.850(b)(1)-(3);
Cuffy v. State, 190 So. 3d 86, 87 (Fla. 4th DCA 2015).

     Furthermore, Appellant’s claims are patently meritless, and
his substantive due process argument, which he claims may be
raised outside rule 3.850’s two-year window, must fail. See
Haliburton v. State, 7 So. 3d 601, 607 (Fla. 4th DCA 2009). Thus,
I agree that the trial court’s order denying relief should be
affirmed.

                 _____________________________


Miguel Sierra, pro se, Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.




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