Anthony Fail v. State of Florida

Opinion

Third District Court of Appeal State of Florida

Opinion filed September 10, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D25-1275 Lower Tribunal No. F98-28317 ________________

Anthony Fail, Appellant,

vs.

State of Florida, Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Laura María González-Marquéz, Judge.

Anthony Fail, in proper person.

James Uthmeier, Attorney General, for appellee.

Before EMAS, LOBREE and BOKOR, JJ.

PER CURIAM. Affirmed. See Wainwright v. State, 411 So. 3d 392, 399-401 (Fla.

2025) (holding that the United States Supreme Court’s decision in Erlinger

v. United States, 602 U.S. 821 (2024) does not apply retroactively to a

sentence that was already final at the time Erlinger issued); see also Arias v.

State, 413 So. 3d 999, 999 (Fla. 3d DCA 2025) (affirming order denying

motion to correct illegal sentence pursuant to Florida Rule of Criminal

Procedure 3.800(a); observing “that the purported error was unpreserved

and is not apparent on the face of the record, and even more significantly,

‘[n]o Court of Appeals, let alone [the Supreme Court], has held that Apprendi

has retroactive effect,’ Harris v. United States, 536 U.S. 545, 581, 122 S.Ct.

2406, 153 L.Ed.2d 524 (2002) (Thomas, J., dissenting), and the Florida

Supreme Court has rejected this ground for relief in at least two reported

postconviction cases”) (citing Ford v. State, 402 So. 3d 973, 981 (Fla. 2025)

(noting that “Erlinger was a direct-appeal case—not a postconviction case

like Ford’s—and it involved required jury findings regarding an element.

Based on these fundamental distinctions, it is clear that Erlinger provides no

support for vacating Ford's death sentences.”)).