Mackay v. State

• Court: District Court of Appeal of Florida
• Decided: August 29, 2014
• Docket: 2D13-5347
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

ROBERT G. MACKAY, ) ) Appellant, ) ) v. ) Case No. 2D13-5347 ) STATE OF FLORIDA, ) ) Appellee. ) )

Opinion filed August 29, 2014.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County; Michael F. Andrews, Judge.

Robert G. MacKay, pro se.

ALTENBERND, Judge.

Robert G. Mackay appeals the summary denial of his petition for writ of

habeas corpus, which the postconviction court treated as a motion filed pursuant to

Florida Rule of Criminal Procedure 3.850. We write briefly to explain that the petition

would be meritless even if treated as a properly filed petition for habeas corpus.

For an event that occurred sometime between late 1974 and mid-1975,

Mr. Mackay was convicted of capital sexual battery in 1987. He filed this petition in the

court of conviction in 2013. He claims he is entitled to release because the jury's verdict did not find that he was over the age of eighteen even though that element was alleged

in the information.

He is correct that the information alleged that he was over the age of

eighteen and that this element was not a finding that the jury was required to make on

the verdict form. But Mr. Mackay does not allege that he was under the age of eighteen

at the time of this event. It appears that he was over the age of twenty at the time of

this event. As explained in Glover v. State, 863 So. 2d 236 (Fla. 2003), the omission of

this element, even from the jury instructions, is not fundamental error when the element

is not in dispute. Mr. Mackay has alleged no claim of manifest injustice in his petition.

Affirmed.

SILBERMAN and VILLANTI, JJ., Concur.

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