JESSIE MCGEE v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: August 25, 2021
• Docket: 21-1213
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed August 25, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-1213 Lower Tribunal No. F98-18923 ________________

Jessie McGee, Appellant,

vs.

The State of Florida, Appellee.

An appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Ramiro C. Areces, Judge.

Jessie McGee, in proper person.

Ashley Moody, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.

Before HENDON, MILLER, and BOKOR, JJ.

MILLER, J. Appellant, Jessie McGee, was convicted of one count of possession of

a firearm by a convicted felon, in violation of section 790.23(1), Florida

Statutes, and sentenced to thirty years in prison with a ten-year minimum

mandatory as a habitual violent felony offender. 1 He subsequently filed a

motion to correct an illegal sentence pursuant to Florida Rule of Criminal

Procedure 3.800(a). In his motion, he contended he had not previously been

convicted of the requisite predicate offense to sustain his designation as a

habitual violent felony offender. See § 775.084, Fla. Stat. Applying Florida

Rule of Criminal Procedure 3.850, the trial court summarily denied the

motion as successive. The instant appeal ensued.

On appeal, the State concedes the trial court erred in treating the

facially sufficient motion as successive under rule 3.850. 2 See Bover v.

State, 797 So. 2d 1246, 1251 (Fla. 2001) (“[T]he adjudication of a defendant

as a habitual offender when the requisite sequential felonies do not exist may

be corrected as an illegal sentence pursuant to rule 3.800(a) so long as the

error is apparent from the face of the record.”). Nonetheless, invoking the

doctrines of collateral estoppel and law of the case, it urges a “tipsy

1 This court previously affirmed McGee’s conviction and sentence. See McGee v. State, 790 So. 2d 425 (Fla. 3d DCA 2001). 2 A motion challenging the legality of a sentence filed pursuant to rule 3.800 may be raised at any time except during the period provided for filing a rule 3.800(b) motion. Fla. R. Crim. P. 3.800(a)(1).

2 coachman” affirmance. Finding that the issue raised before the lower

tribunal was squarely adjudicated by way of a previously affirmed court

order, and McGee has failed to demonstrate manifest injustice capable of

determination from the face of the record, we affirm. See McGee v. State,

129 So. 3d 1078 (Fla. 3d DCA 2013); see also State v. McBride, 848 So. 2d

287 (Fla. 2003) (finding collateral estoppel may operate as a bar to a

successive motion to correct an illegal sentence); Swain v. State, 911 So. 2d

140, 143-44 (Fla. 3d DCA 2005) (“While successive 3.800(a) motions are

permitted even though the claims are those which could have been raised in

previously filed 3.800(a) motions, and there is no time limit for seeking such

relief, the law of the case doctrine prevents a litigant from relitigating the

same issues previously considered and rejected on the merits and reviewed

on appeal.”) (citations omitted).

Affirmed.