McMillan v. State

42 So. 3d 842, 2010 Fla. App. LEXIS 11291, 2010 WL 3023393

Opinion

PER CURIAM.

The trial court dismissed Anthony McMillan’s third Florida Rule of Criminal Procedure 3.800(a) motion as impermissi-bly successive and an abuse of procedure. We agree with the trial court that most of McMillan’s third rule 3.800(a) motion is successive. We discern, however, one argument in the instant motion not previously raised. Here, he asserted that, at sentencing, the trial court stated the imposition of a life sentence as a habitual violent felony offender was mandatory, when, in fact, such a sentence was permissive. We agree with McMillan that the life sentence was permissive, not mandatory, but find the error harmless as a matter of law since McMillan was eligible for a life sentence. See Brooks v. State, 969 So.2d 238, 239 (Fla.2007) (adopting “could-have-been-imposed harmless error test” for rule 3.800(a) motions). Nonetheless, because this argument was raised for the first time in the instant motion, we are compelled to deny it on the merits.

Affirmed.

GROSS, C.J.; STEVENSON and CIKLIN, JJ., concur.