        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                          JEROME McCLELLION,
                               Appellant,

                                       v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D15-4050

                              [March 16, 2016]

   Appeal of order denying rule 3.800 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Paul L. Backman,
Judge; L.T. Case No. 01-16187 CF10A.

    Jerome McClellion, Crawfordville, pro se.

    No appearance required for appellee.

PER CURIAM.

   Jerome McClellion appeals the denial of his rule 3.800(a) motion to
correct an illegal sentence. We affirm because Appellant has not shown
that his sentence is illegal and because the motion attempts to bring an
untimely and procedurally-barred challenge to a conviction.1 We write to
further clarify that an unpreserved trial court error in allowing a jury to
consider a lesser offense is not a conviction for an uncharged crime that
can be raised at any time in a postconviction motion.

                                 Background

   Appellant was charged in count one with aggravated battery on a law
enforcement officer (LEO) based on the use of a deadly weapon (a motor
vehicle). In October 2001, a jury convicted Appellant of a lesser offense
included on the verdict form: aggravated assault on an LEO.2 As to this

1 Appellant’s motion also asserted other meritless claims that he has not argued
on appeal and which are deemed abandoned. Hammond v. State, 34 So. 3d 58,
59 (Fla. 4th DCA 2010).
2 Appellant was convicted of other counts, but they are not at issue on appeal.
count, the court sentenced Appellant as a habitual felony offender to thirty
years in prison with a fifteen-year mandatory minimum as a prison
releasee reoffender (PRR). On direct appeal, we reversed the convictions
on counts two and three because those charges occurred in Dade County
and venue was not proper in Broward. McClellion v. State, 858 So. 2d 379,
380 (Fla. 4th DCA 2003). His conviction and sentence on count one were
not disturbed.

   Appellant filed this rule 3.800(a) motion in December 2014. His motion
claims that aggravated assault on a LEO does not qualify for PRR
sentencing.

                                     Analysis

   Appellant has not shown that his PRR sentence is illegal. First,
although Appellant relies on Walker v. State, 965 So. 2d 1281 (Fla. 2d DCA
2007), that case is inapplicable because it concerned a conviction for
simple battery on a law enforcement officer, id. at 1283, and “simple
battery” is not enumerated in the PRR statute, as distinguished from
“aggravated assault with a deadly weapon.” § 775.082(9)(a)1., Fla. Stat.
(2000).3

   The offense of “aggravated assault,” even without a deadly weapon,
qualifies for PRR sentencing under the catchall provision in section
775.082(9)(a)1.o, which includes “[a]ny felony that involves the use or
threat of physical force or violence against an individual.” Id.; Wheeler v.
State, 898 So. 2d 1052, 1053 (Fla. 2d DCA 2005). The Florida Supreme
Court has recognized that an assault necessarily involves a threat of
violence and qualifies under the catchall provision in the PRR statute.
State v. Hackley, 95 So. 3d 92, 94 (Fla. 2012); see also Shaw v. State, 26
So. 3d 51, 53 (Fla. 5th DCA 2009).

3  “Aggravated assault with a deadly weapon” is expressly enumerated and
qualifies for PRR sentencing. § 775.082(9)(a)1.j., Fla. Stat. (2000). Appellant,
whose charge was based on use of deadly weapon, has not shown that the face
of the record establishes that the jury did not make a finding that a deadly
weapon was used in the aggravated assault in this case. See § 784.021, Fla. Stat.
(2000) (defining “aggravated assault” as an assault that is committed (1) with a
deadly weapon without intent to kill or (2) with an intent to commit a felony); see
also Johnson v. State, 60 So. 3d 1045, 1050 (Fla. 2011) (stating that to be
correctable under rule 3.800(a), the illegality in the sentence must be identifiable
from the face of the record, and the burden is on the movant to demonstrate an
entitlement to relief from the face of the record); Gentile v. State, 87 So. 3d 55, 57
(Fla. 4th DCA 2012) (explaining that only “a clear jury finding” is required for an
enhancement statute to apply).

                                          2
    Elsewhere in his motion, and in his rehearing motion, Appellant
claimed “manifest injustice” and argued that he was convicted of an
uncharged offense because the elements of the lesser offense of aggravated
assault were not charged in the information. “Aggravated assault is not a
necessarily lesser included offense of aggravated battery and it can be
considered an included offense only, if at all, where the information
charges the elements of both and the facts necessary to support both.”
Salas v. State, 591 So. 2d 257, 258 (Fla. 4th DCA 1991). Appellant relies
on Figueroa v. State, 84 So. 3d 1158 (Fla. 2d DCA 2012), where the court
found manifest injustice and granted habeas corpus relief where a
conviction was based on a “fundamentally defective” information that
failed to allege an essential element of the charged offense. Id. at 1161-
62.

   Appellant’s challenge to his conviction is untimely and procedurally
barred, and he cannot circumvent these bars by framing his claim as a
challenge to the sentence. The time for filing a postconviction motion
challenging the conviction in this case expired in 2005, two years after the
judgment and sentence became final on direct appeal. Fla. R. Crim. P.
3.850(b). Incanting the words “manifest injustice” does not excuse the
procedural bars. See Cuffy v. State, 40 Fla. L. Weekly D687, D688 (Fla.
4th DCA Mar. 18, 2015).

   Moreover, Appellant’s reliance on Figueroa is misplaced. The Figueroa
court determined that the information was “fundamentally defective”
because it did not charge the defendant with possession of a firearm
during the commission of the robbery. 84 So. 3d at 1159-60. The court
determined that the conviction for robbery with a firearm could not stand
because the essential element of possession of a firearm was omitted from
the body of the information and was not otherwise properly charged. Id.
at 1161. Figueroa did not involve a lesser offense, and the opinion in
Figueroa recognized that the defect in the information had been raised on
direct appeal but was overlooked by the reviewing court. Id. at 1162
(recognizing that relief should have been granted on direct appeal). In
contrast, in this case, Appellant does not allege that the error was
preserved by an objection at trial, and he did not raise it on direct appeal.

    Thus, Appellant’s claim that he was improperly convicted of a lesser
offense is a procedurally barred claim of trial court error that cannot be
raised for the first time in a postconviction proceeding. Any error in
instructing the jury as to this lesser offense could have been objected to at
trial and raised on direct appeal if necessary. See, e.g., Negron v. State,
938 So. 2d 650 (Fla. 4th DCA 2006). The alleged error in instructing the

                                     3
jury as to this lesser offense is not an error that can be raised at any time
and does not provide any basis for untimely postconviction relief. See
Nesbitt v. State, 889 So. 2d 801, 803 (Fla. 2004) (holding that, when a trial
court erroneously instructs the jury on a lesser offense, the error is not
per se fundamental, and a contemporaneous objection will generally be
necessary to preserve the error for review).

   Nesbitt applied the fundamental error analysis of Ray v. State, 403 So.
2d 956 (Fla. 1981), which applies when a defendant fails to object to an
erroneous lesser included charge. Under Ray,

      [I]t is not fundamental error to convict a defendant under an
      erroneous lesser included charge when he had an opportunity
      to object to the charge and failed to do so if: 1) the improperly
      charged offense is lesser in degree and penalty than the main
      offense or 2) defense counsel requested the improper charge
      or relied on that charge as evidenced by argument to the jury
      or other affirmative action.

Id. at 961 (footnote omitted). The Second District’s decision in Figueroa
could not overrule the Florida Supreme Court’s precedent set forth in
Nesbitt and Ray.

    In the present case, whether Appellant’s conviction for the lesser
offense constituted a fundamental error does not control our
postconviction analysis.     The claim simply cannot be raised in a
postconviction motion. The fact that an error is “fundamental,” so that it
can be raised on direct appeal despite the lack of objection at trial, does
not necessarily mean the error can be raised at any time in a
postconviction proceeding. See Hughes v. State, 22 So. 3d 132, 136-37
(Fla. 2d DCA 2009) (“[F]undamental error is not a valid ground for an
untimely postconviction motion unless one creates a unique definition of
‘fundamental error’ for this particular purpose.”). In any case, aggravated
assault on an LEO is lesser in both degree and penalty than aggravated
battery on an LEO. Aggravated assault on an LEO is a second degree
felony. § 784.07(2)(c), Fla. Stat. Aggravated battery on an LEO is a first
degree felony. § 784.07(2)(d). Thus, the error would not be fundamental
under Ray.

   Appellant mistakenly relies on Achin v. State, 436 So. 2d 30 (Fla. 1982),
but in that case, the defendant was convicted of a nonexistent offense,
which is not the case here. Id. at 32.



                                     4
   Here, any error in instructing the jury as to the lesser offense of
aggravated assault on a law enforcement officer had to be preserved by
objection at trial. The claim of trial court error is procedurally barred from
being raised in a postconviction motion. Appellant cannot spring this
challenge to his conviction years after the fact in a motion to correct illegal
sentence. Appellant’s claims lack merit and were properly denied.

   Affirmed.

CIKLIN, C.J., and LEVINE and FORST, JJ., concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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