           IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FIFTH DISTRICT

                                                   NOT FINAL UNTIL TIME EXPIRES TO
                                                   FILE MOTION FOR REHEARING AND
                                                   DISPOSITION THEREOF IF FILED

JAMES McNAIR,

              Appellant,

 v.                                                       Case No. 5D17-3453

STATE OF FLORIDA,

           Appellee.
________________________________/

Opinion filed April 20, 2018

3.850 Appeal from the Circuit
Court for Marion County,
Willard Pope, Judge.

James McNair, Bristol, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Carmen F.
Corrente,   Assistant     Attorney
General, Daytona Beach, for
Appellee.

COHEN, C.J.

       James McNair appeals the denial of his motion for postconviction relief filed

pursuant to Florida Rule of Criminal Procedure 3.850. In 2014, McNair was convicted of

robbery with a firearm and burglary of a structure with a firearm following a jury trial. 1 He



       1 McNair was also charged with possession of a firearm by a convicted felon, but
the State ultimately entered a nolle prosequi on that charge. This was the second trial at
which McNair was convicted of the robbery and burglary charges. After the first trial, his
convictions were reversed in a federal habeas corpus proceeding because the original
trial judge did not honor McNair’s request to represent himself. On remand, McNair
was sentenced as a three-time violent felony offender (“VFO”) and is serving a life

sentence.

       In 2016, McNair filed a motion for postconviction relief under Florida Rule of

Criminal Procedure 3.800(a), alleging that his sentence was illegal. Specifically, McNair

challenged the use of a 1992 conviction as a predicate offense for his VFO sentence

enhancement. That motion was denied. In affirming, we noted:

              Although it is not clear from the face of the record that
              McNair’s sentence is illegal, the records attached to the trial
              court’s order do not establish that the sentence is legal.

              ....

              “[T]o the extent that there may be records in the instant
              proceedings that demonstrate on their face an entitlement to
              relief, it was and remains [McNair’s] burden—not the trial
              court’s—to specifically identify those records.” McClain v.
              State, 157 So. 3d 528, 529 (Fla. 1st DCA 2015) (citing
              Johnson v. State, 60 So. 3d 1045, 1050 (Fla. 2011) (“Under
              rule 3.800(a), ‘the burden [is on] the petitioner to demonstrate
              an entitlement to relief on the face of the record.’” (quoting
              Williams v. State, 957 So. 2d 600, 602 (Fla. 2007))).

McNair v. State, 212 So. 3d 1143, 1143 n.1 (Fla. 5th DCA 2017). Because McNair’s claim

was not cognizable under rule 3.800(a), we concluded that it should have been raised on

direct appeal or pursuant to rule 3.850. Id. at 1143.

       McNair then filed a motion for postconviction relief under rule 3.850, alleging that

counsel was ineffective for failing to object to the use of the 1992 conviction as a predicate

offense for VFO treatment. The lower court denied the motion after an evidentiary

hearing. This appeal followed.




requested appointment of counsel. The instant appeal claims that his court-appointed
attorney in those proceedings provided ineffective assistance.


                                              2
      The issue in this case comes down to what crime McNair pleaded to in 1992,

specifically whether McNair pleaded to aggravated assault with a deadly weapon or

aggravated assault with the intent to commit a felony. See § 784.021, Fla. Stat. (1992).

The former may be used as a predicate offense for VFO treatment, while the latter may

not. See § 775.084(1)(c)1.g., Fla. Stat. (2015) (enumerating aggravated assault with a

deadly weapon as a conviction qualifying for three-time violent felony offender

enhancement if accompanied by other qualifying offenses).

      McNair was charged in the 1991 case with robbery with a firearm and aggravated

battery with a deadly weapon. He entered into a plea agreement, the language of which

is critical to McNair’s argument. The plea agreement reflects that McNair agreed to plead

no contest to aggravated assault, and the State would nolle pros the robbery charge. The

agreement does not state what would occur with the aggravated battery charge. McNair

would receive one year of community control, followed by two years of probation. A

handwritten note signed by the trial judge appears in the margin of the plea form, with an

arrow to the section reflecting charges in the “amended information.” 2 The notation states

that the charge was aggravated assault with a firearm. However, the section of the plea

form listing the charges to which McNair was pleading simply reads, “Aggravated assault,”

and does not reference whether the charge involved the use of a firearm or other deadly

weapon:




      2The amended information only reflected charges of robbery with a firearm and
aggravated battery with a deadly weapon.


                                            3
      As with the plea form, the judgment and sentence merely reflect a conviction for

aggravated assault, without reference to whether it was with a firearm or in the course of

the commission of a felony. To complicate matters, the judgment and sentence list a non-

existent statute for McNair’s charge. No transcripts of the plea or sentencing hearings are

available because of the length of time that has elapsed. The only documentation




                                            4
reflecting anything other than simply “aggravated assault” is the judge’s handwritten note

on the plea form.

       At the evidentiary hearing on McNair’s rule 3.850 motion, McNair claimed to have

pleaded only to aggravated assault. The original prosecutor testified that it was her belief

that McNair pleaded to aggravated assault with a firearm, but it was evident that she had

little, if any, recollection of the case. McNair’s trial counsel from the 2014 trial, Jacques

Ward, also testified. Ward acknowledged that he had not examined either the underlying

documents or the judgment and sentence, instead relying on information provided in the

Comprehensive Case Information System offered by the clerk of the court. He also

acknowledged that he had not discussed with McNair the offenses that the State intended

to use to enhance McNair’s sentence. As indicated, no transcript of the plea hearing from

1992 was produced at the evidentiary hearing, and the State did not present evidence

that McNair had other qualifying offenses that could have supported VFO sentencing

enhancement.

       There are several issues raised by the facts of this case, many of which were

created by a lack of attention to detail. The State bears the majority of the responsibility.

The assistant state attorney signed off on the plea form despite its ambiguity. Before the

trial judge’s interlineation, the form reflected that McNair faced charges for armed burglary

of a dwelling, robbery with a firearm, and aggravated battery with a deadly weapon. The

burglary charge is merely crossed out in the first paragraph, and nothing in the second

paragraph indicates what was to occur with the aggravated battery charge. The State

agreed to nolle pros the robbery with a firearm charge. McNair would then plead to

aggravated assault, which is not a lesser included of aggravated battery. See Moody v.




                                             5
State, 597 So. 2d 839, 840 (Fla. 5th DCA 1992) (citing State v. Whitfield, 487 So. 2d 1045

n.1 (Fla. 1986)). However, aggravated assault is a category two lesser-included offense

of the robbery with a firearm charge. See Fla. Std. Jury Inst. (Crim.) 15.1. By signing the

plea form, the State raised no issue with listing the charge as aggravated assault, rather

than aggravated assault with a firearm. The State likewise did not contest the final

judgment, which reflected only aggravated assault without specifying if it was committed

by use of a deadly weapon. The State also did not object when the judgment and

sentence referenced a non-existent statute. The State had opportunity after opportunity

to clarify or correct any mistake or misapprehension regarding the plea offer, yet it failed

to do so.

       As a result, we are left with McNair’s testimony that he pleaded only to aggravated

assault, the testimony of the assistant state attorney who signed the ambiguous plea

form, and the testimony of McNair’s lawyer who acknowledged that he failed to even

glance at records that can significantly affect a client’s sentence. Under these

circumstances, we find that the trial court erred in denying McNair’s motion for

postconviction relief. Accordingly, we reverse the denial of McNair’s motion and remand

for resentencing. Although the State will not be precluded from seeking a sentencing

enhancement, it must do so without using the 1992 aggravated assault conviction.

       REVERSED and REMANDED.

WALLIS and EISNAUGLE, JJ., concur.




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