          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-929
                  _____________________________

THOMAS E. KING,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Escambia County.
Gary L. Bergosh, Judge.

                        December 18, 2018

WINOKUR, J.

     Thomas E. King appeals the denial of his second motion to
correct illegal sentence. We find that the trial court did not err in
denying it, and affirm.

     A jury found King guilty of aggravated battery, a second-
degree felony normally punishable by up to fifteen years in prison.
§ 775.082(3)(d), Fla. Stat. In his commission of aggravated battery,
the jury specifically found that he possessed a firearm, discharged
a firearm, and caused great bodily harm, which required a twenty-
five year minimum sentence and authorized a life sentence.
§ 775.087(2)(a), Fla. Stat. The State did not reclassify the
aggravated battery to a first-degree felony under section
775.087(1), Florida Statutes. The trial court sentenced King to
thirty years imprisonment, including          a   twenty-five   year
mandatory minimum sentence.

     King filed a motion to correct an illegal sentence pursuant to
Florida Rule of Criminal Procedure 3.800(a), asserting that his
sentence was illegal because his second-degree felony was not
reclassified and he could not be sentenced in excess of the twenty-
five year mandatory minimum. The trial court denied the motion,
and we affirmed citing Hatten v. State, 152 So. 3d 849, 850 (Fla.
1st DCA 2014) (“Hatten I”), which held that sentences in excess of
the mandatory minimums under the 10-20-Life statute did not
require any additional statutory authority. King v. State, 215 So.
3d 1245 (Fla. 1st DCA 2016) (Table). Although we noted in the
King opinion that Hatten I had been accepted for review by the
Florida Supreme Court, King did not petition the supreme court
for review of our decision. Hatten I was quashed by the supreme
court, which held that any sentence in excess of the minimum
mandatory must be supported by additional statutory authority.
Hatten v. State, 203 So. 3d 142, 146 (Fla. 2016) (“Hatten II”).

     King then filed another Rule 3.800(a) motion, again
contending that he could not be sentenced in excess of the twenty-
five year mandatory minimum. King argued that our holding in
Kelly v. State, 137 So. 3d 2, 5 (Fla. 1st DCA 2014), 1 did not comply
with the language of the 10-20-Life statute. King never referenced
his previous Rule 3.800(a) motion, or asserted that he was due
relief based on our earlier opinion or Hatten II. When the trial
court denied the motion as successive, King appealed.

     If King is entitled to be resentenced under Hatten II, he did
not make this argument to the trial court. Thus, the trial court did
not err in denying his motion. See, e.g., Martinez v. State, 211 So.
3d 989, 992 (Fla. 2017) (holding that failure to argue a proper basis
for relief in a Rule 3.800(a) motion does not permit relief on
appeal).

     Even if King made this argument, we would find that King is
not entitled to relief. King’s conviction was final before Hatten II
was decided, so he is entitled to the benefit of that ruling only if


    1   Abrogated by Hatten II.
                                  2
Hatten II is retroactive. The supreme court discussed retroactivity
in Mosley v. State, 209 So. 3d 1248, 1276 (Fla. 2016), as follows:

    [A] change in the law does not apply retroactively “unless
    the change: (a) emanates from this Court or the United
    States Supreme Court, (b) is constitutional in nature, and
    (c) constitutes a development of fundamental
    significance.” . . . Put simply, balancing fairness versus
    finality is the essence of a Witt retroactivity analysis.

Id. (quoting Witt v. State, 387 So. 2d 922, 931 (Fla. 1980)).

     Hatten II, while emanating from the Florida Supreme Court,
was not “constitutional in nature,” but decided which
interpretation of a statute best effected legislative intent.
Additionally, it was not fundamentally significant nor did it
seriously affect the fairness of sentences; it held that a first-degree
felony was punishable by life in prison (or any term of years) if the
twenty-five year mandatory minimum sentence of the 10-20-life
statute applied, so long as whatever sentence the trial court
wished to impose was called a mandatory minimum sentence.
Hatten II, 203 So. 3d at 146. Hatten II was not a significant
development in this respect, since those entitled to resentencing
under Hatten II could have the same sentences reimposed as a
“mandatory minimum,” which could actually lengthen their
sentences by precluding gain-time. As such, King is not entitled to
retroactive application of Hatten II. 2,3 Accordingly, the court did
not err in denying King’s motion.


    2  We do not decide whether the result here might have been
different if King had sought supreme court review of our decision
affirming the denial of his first Rule 3.800(a) motion. As it is, our
decision in that case was final before Hatten II was decided.

    3
      We make clear here that a defendant whose sentence is final
before an opinion interpreting a relevant sentencing statute is
issued may not receive the benefit of that opinion unless it is
proved that the opinion requires retroactive application. A
defendant may not simply argue that the new opinion renders his
or her previously-imposed sentence “illegal,” entitling the
defendant to resentencing under Rule 3.800(a) (authorizing a
                                  3
    AFFIRMED.

BILBREY, J., concurs; RAY, J., concurs in result only.

                  _____________________________

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


Thomas E. King, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Robert Charles Lee,
Assistant Attorney General, Tallahassee, for Appellee.




“motion to correct illegal sentence”) unless it is demonstrated that
the new opinion is retroactive. Rule 3.800(a) does not provide a
substitute for retroactivity analysis. See McCuiston v. State, 534
So. 2d 1144, 1146 (Fla. 1988) (holding that a later construction of
a statute, which would render particular sentences impermissible,
does not entitle defendants to relief after their sentences became
final unless the decision is deemed to apply retroactively).
Generally, if the sentence was not illegal at the time it was
imposed, the defendant is not entitled to relief under Rule 3.800(a)
by virtue of a later-decided case. This is especially true where, as
here, a binding opinion at the time of sentencing permitted the
sentence.
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