Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT DAVID LEE THOMAS, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-4004 November 30, 2022 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Lee County; James Russell Thompson, Judge. David Lee Thomas, pro se. EN BANC SMITH, Judge. In this appeal, David Lee Thomas seeks reversal of the postconviction court's order denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a) and determining that he should be subject to disciplinary procedures through the Department of Corrections (DOC) because his claims are successive and frivolous. We affirm that portion of the order denying the motion to correct illegal sentence. In so doing, we proceed en banc to recognize the applicability of Cotto v. State (Cotto II), 139 So. 3d 283 (Fla. 2014), to Mr. Thomas's sentences and to recede from certain opinions from this court that we recognize today as having been based on older case law that was overruled by Cotto II. See Fla. R. App. P. 9.331(a) (providing that the appellate court may order a proceeding to be determined en banc to maintain uniformity in the court’s decisions). We also reverse the portion of the order finding that Mr. Thomas's motion was frivolous and subject to disciplinary procedures. I. Mr. Thomas was convicted in 1991 of first-degree murder, a capital felony, and attempted robbery with a firearm, a second- degree felony. The charges were filed in May 1990. The trial court originally sentenced him to death for the murder and thirty years' imprisonment with a ten-year minimum mandatory sentence as a 2 habitual violent felony offender (HVFO) for the attempted robbery under section 775.084(4)(b), Florida Statutes (1989). A resentencing agreement was reached with the State during capital postconviction proceedings. It appears from the written sentences rendered that Mr. Thomas was resentenced for the murder, a capital offense, to an unenhanced life sentence without the possibility of parole before serving twenty-five years in prison. The resentencing court also reimposed a thirty-year HVFO sentence, without a minimum mandatory term, for the attempted robbery, which was set to run consecutively to the unenhanced life sentence.1 1 We are without the benefit of the resentencing transcripts to ascertain the resentencing court's reasoning in omitting the minimum mandatory from the HVFO sentence, and no party has suggested that the written sentence is different from the sentence orally imposed at resentencing in order to place such an issue before us. We likewise consider neither the implications of running consecutive minimum mandatories in this case nor whether it was proper to impose an HVFO sentence without a minimum mandatory term. What is important for the purposes of this opinion is only that the sentence on the second-degree felony was enhanced beyond the statutory maximum as a habitualized sentence at the time of the resentencing and that this enhanced sentence was imposed to run consecutively to the unenhanced life sentence. 3 In the rule 3.800(a) motion that is the subject of this appeal, Mr. Thomas argued for the fourth time that his consecutive sentences are illegal because they arose from the same criminal episode and one sentence is habitualized and one is not.2, 3 The postconviction court denied the motion as successive, found the motion frivolous and an abuse of process, and referred Mr. Thomas to DOC for discipline. 2 Mr. Thomas previously filed three rule 3.800(a) motions raising the same consecutive sentence claim. The first motion was denied on the merits. The second and third motions were denied as successive. Mr. Thomas only appealed the denial of the second motion, which this court affirmed. Thomas v. State, 158 So. 3d 585 (Fla. 2d DCA 2014) (table decision). 3 In this motion, Mr. Thomas also argued that his consecutive twenty-five-year and ten-year minimum mandatory sentences violate the Eighth Amendment of the United States Constitution as interpreted by the United States Supreme Court in Graham v. Florida, 560 U.S. 48 (2010). The postconviction court's order did not expressly address the merits of this claim. However, even if the amended sentencing order had imposed consecutive minimum mandatory sentences, which it did not do according to the written sentences, Mr. Thomas would not be entitled to relief under Graham because Graham is not applicable to adult sentences, even those imposed on adults with intellectual disabilities. See Romero v. State, 105 So. 3d 550, 552 n.1 (Fla. 1st DCA 2012); United States v. Davis, 531 Fed. App'x. 601, 608 (6th Cir. 2013). We therefore affirm the postconviction court's order denying relief as to this claim without further comment. 4 II. In Hale v. State, 630 So. 2d 521, 525–26 (Fla. 1993), the Florida Supreme Court held that it is impermissible to impose multiple enhanced HVFO sentences to run consecutively when the offenses arose from the same criminal episode. After Hale, the district courts of appeal were asked to determine whether Hale applied to situations where an unenhanced sentence was imposed to run consecutively to an enhanced habitual offender sentence arising from the same criminal episode. See, e.g., Kiedrowski v. State, 876 So. 2d 692, 694 (Fla. 1st DCA 2004); Dawson v. State, 951 So. 2d 931, 934 (Fla. 4th DCA 2007); Fuller v. State, 867 So. 2d 469, 470 (Fla. 5th DCA 2004). This court first addressed the opposite question—whether an enhanced sentence could be run consecutively to an unenhanced sentence—in Swanson v. State, 98 So. 3d 194 (Fla. 2d DCA 2012). In Swanson, we accepted the State's concession of error and reversed consecutive unenhanced and habitual felony offender (HFO) sentences arising from the same criminal episode on the basis that they violated the principles of Hale. Id. at 195. In two subsequent opinions we held that imposing habitual offender sentences to run consecutively to 5 unenhanced sentences was illegal if the offenses arose from the same criminal episode. See Williams v. State, 124 So. 3d 286, 288 (Fla. 2d DCA 2013) (granting postconviction relief where an unenhanced sentence was ordered to run consecutively to an enhanced sentence and articulating Swanson as holding "that a combination of habitualized and nonhabitualized sentences running consecutively is illegal under Hale when the offenses arose from a single episode"); Saldana v. State, 139 So. 3d 351, 353 (Fla. 2d DCA 2014) (granting relief under Hale on direct appeal where an unenhanced sentence was set to run consecutively to an enhanced HFO sentence that also included a prison releasee reoffender (PRR) designation and citing Williams and Swanson for the proposition that "consecutive HFO and non-HFO sentences are illegal if the underlying offenses arose from the same episode"). In Saldana, we expressly recognized that the Third District had held to the contrary. Id. at 353 (recognizing that another district court had read Hale as "forbid[ding] only the imposition of two or more consecutive sentences that have themselves been enhanced and which arise from the same criminal episode" (quoting Cotto v. State (Cotto I), 89 So. 3d 1025, 1030 (Fla. 3d DCA 2012))). 6 After we issued Saldana, the Florida Supreme Court resolved its then-pending review of Cotto I on conflict with the Fifth District's opinion in Williams v. State, 10 So. 3d 1116 (Fla. 5th DCA 2009). See Cotto II, 139 So. 3d 283.4 The supreme court approved the Third District's opinion and concluded that imposing a PRR sentence consecutively to a habitual offender sentence arising from the same criminal episode was legal under Hale, and it held that Hale "does not prohibit a habitual offender sentence from being imposed consecutively to a PRR sentence." Cotto II, 139 So. 3d at 290. The supreme court's reasoning was that "Hale stands for the proposition that once multiple sentences from a single criminal episode are enhanced through the habitual offender statute, the total penalty cannot be further increased by consecutive sentencing absent specific legislative authorization." Id. at 289. The supreme court explained it is not illegal under Hale to impose a PRR sentence consecutively to a habitual offender sentence because the PRR statute does not enhance a maximum 4 While Cotto II became final first and is therefore reported first in the Southern Reporter, we issued Saldana more than a month prior to the issuance of Cotto II. 7 possible sentence. Id. And, as is important to our holding today, the court further applied this reasoning to any unenhanced sentence. Id. ("We are unwilling to extend Hale to apply to unenhanced sentences").5 Thus, under the reasoning of Cotto II, an 5 Cotto II distinguished the intent of the PRR statute, which only addressed a sentencing floor rather than enhancing the length of sentence. It specifically concluded that [w]hile the intent behind the habitual offender statute is to increase the maximum allowable sentence, the intent behind the PRR provision is to provide for maximum sentencing within the sentencing statute. Therefore, although the legislative intent in the habitual offender statute is satisfied upon the imposition of an extended sentence beyond the otherwise applicable statutory maximum, the PRR statute expressly authorizes trial courts to impose the maximum sentence, which contemplates the use of consecutive sentencing. Based on this unambiguous expression of legislative intent in the PRR statute, we conclude that Hale does not prohibit a trial court from imposing a PRR sentence consecutive to a habitual offender sentence. 139 So. 3d at 290. Like the intent of the PRR statute, section 775.021(4)(a), Florida Statutes, similarly expresses the legislative intent that an unenhanced sentence for an act committed in the same criminal episode as other crimes may be sentenced to run consecutively to the other sentences. Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, 8 unenhanced sentence, or vice versa, can legally be imposed to run consecutively to a habitualized sentence arising from the same criminal episode without violating Hale. This was, of course, different from our holdings in Williams and Saldana, which were based on our prior opinion in Swanson. Furthermore, Cotto II specifically held that an enhanced habitualized sentence can be imposed to run consecutively to an unenhanced PRR sentence, which is also contrary to our holding in Swanson. See id. at 290. This court has since applied Cotto II to cases involving consecutive PRR and habitualized sentences. See, e.g., Walsh v. State, 198 So. 3d 783, 787 n.7 (Fla. 2d DCA 2016) (noting that offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial. Hale examined the application of this statute from the perspective of two sentences that were already enhanced to conclude that it could not be applied to also run those enhanced sentences consecutively. Hale, 630 So. 2d at 523–24. As similar to what Cotto II points out in regard to the PRR statute, the legislative intent of section 775.021(4)(a) also does not preclude running enhanced and unenhanced sentences consecutively. See also State v. Enmund, 476 So. 2d 165, 168 (Fla. 1985) ("We hold that the legislature intended that the minimum mandatory time to be served before becoming eligible for parole from a conviction of first-degree murder may be imposed either consecutively or concurrently, in the trial court's discretion, for each and every homicide."). 9 Cotto II held that the PRR statute is not a sentencing enhancement and therefore PRR sentences consecutive to HFO sentences are legal); Evans v. State, 280 So. 3d 511, 512 & n.1 (Fla. 2d DCA 2019) (noting that according to Cotto II, the PRR sentencing designation is not an enhancement despite the State's notice during trial that it was seeking "both enhancements post trial"). Nevertheless, we have continued to apply Swanson, Williams, and Saldana to conclude that it is illegal under Hale to impose habitualized and unenhanced sentences that do not have a PRR designation to run consecutively to one another when they arise from the same criminal episode. See Jackson v. State, 159 So. 3d 971, 971 (Fla. 2d DCA 2015)6 (concluding trial court erred in "impos[ing] a [HFO] sentence of ten years in prison for burglary of a conveyance consecutive to the non- HFO sentence of five years in prison for grand theft" where the offenses arose from the same criminal episode relying on Hale and Saldana after Cotto II issued); see also Weitz v. State, 196 So. 3d 466, 466 (Fla. 2d DCA 2016) (relying on Hale and Saldana to hold 6 In Jackson, the State conceded that the trial court erred in imposing consecutive HFO and non HFO sentences when the underlying offense arose from the same criminal episode. 159 So. 3d at 971. 10 that "the trial court erred in running Weitz's non-HFO sentence for unlawful use of a two-way device consecutively to his HFO sentence for transmitting harmful material when both charges arose out of the same criminal episode"), vacated in part on other grounds, 275 So. 3d 707 (Fla. 2d DCA 2019). We now recognize that Cotto II necessarily applies to situations involving the running of consecutive enhanced habitual offender sentences and unenhanced sentences stemming from the same criminal episode regardless of whether the unenhanced sentence has a PRR designation, some other type of minimum mandatory term, or no designation at all. Cotto II must be read as having overruled our holdings in Swanson, Williams, and Saldana. Accordingly, to the extent Cotto II contradicts those opinions, we recognize that they are no longer good law in this district. We therefore also recede from Jackson and Weitz to the extent they relied on Swanson, Williams, or Saldana after Cotto II issued. III. Turning then to the instant case, Mr. Thomas's life sentence with no possibility for parole for twenty-five years is an unenhanced sentence because it does not exceed the statutory maximum for the 11 capital offense of first-degree murder. Under Cotto II, imposing his enhanced HVFO sentence for attempted robbery with a firearm consecutively to his unenhanced life sentence is legal even if both offenses arose from the same criminal episode. Accordingly, Mr. Thomas is not entitled to relief on his claim even under our clarified understanding of the applicable case law, and we affirm the postconviction court's denial of this claim. IV. Although we affirm the denial of Mr. Thomas's rule 3.800(a) motion as to the merits of his claims, we reverse the portion of the postconviction court's order finding that Mr. Thomas's fourth rule 3.800(a) motion was frivolous and an abuse of process and referring him to the DOC for discipline. See § 944.279, Fla. Stat. (2021); Ward v. State, 323 So. 3d 811, 814 (Fla. 2d DCA 2021). The postconviction court abused its discretion in this case. See Roland v. State, 267 So. 3d 449, 450 (Fla. 4th DCA 2019) ("An order prohibiting further pro se filing Is reviewed for an abuse of discretion."). When Mr. Thomas filed his first rule 3.800(a) motion raising his consecutive sentence claim on February 28, 2010, we had not 12 yet ruled on whether imposing a habitual offender sentence consecutively to an unenhanced sentence was illegal under Hale where the offenses arose from the same criminal episode. Therefore, the postconviction court did not err when it relied upon case law from other district courts in ruling on that first motion. However, prior to the denial of his second motion, we had issued Swanson and Williams. And prior to the denial of his third motion, we issued Saldana and Jackson. And then, prior to the denial of his fourth motion, we issued Weitz. The body of case law on this issue became a moving target, but the postconviction court continued denying Mr. Thomas's claim as successive to the first motion without regard to the changes in the case law.7 In light of this changing precedent, Mr. Thomas's fourth motion was neither frivolous nor an abuse of process. We had issued several opinions that supported Mr. Thomas's legal argument after the postconviction court denied his first motion. 7 The law of the case doctrine did not prevent the postconviction court from ruling on the merits of Mr. Thomas's claim in his third and fourth motions because this court had not ruled on the merits of the substantive claim after the changes in case law. See State v. McBride, 848 So. 2d 287, 289–90 (Fla. 2003). 13 See Watts v. State, 657 So. 2d 1243, 1243–44 (Fla. 2d DCA 1995) (holding that a second motion was not successive because the first motion was denied prior to the issuance of Hale). Despite this, the postconviction court continued to deny Mr. Thomas's subsequent motions as successive in reliance on the cases from other district courts. We therefore reverse that portion of the postconviction court's order finding the motion to be frivolous and an abuse of process and referring the matter to the DOC for disciplinary action. V. We recede en banc from Swanson, Williams, Saldana, Jackson, and Weitz to the extent they conflict with the Florida Supreme Court's opinion in Cotto II. We affirm the postconviction court's denial of Mr. Thomas's fourth rule 3.800(a) motion. However, we reverse the portion of the order finding the motion to be frivolous and an abuse of process. On remand, the postconviction court shall vacate that portion of the order and enter an order memorializing that Mr. Thomas is not subject to DOC discipline for the filing of frivolous claims under section 944.279. The DOC should be immediately served with a copy of such order. 14 Affirmed in part, reversed in part, and remanded. MORRIS, C.J., and NORTHCUTT, CASANUEVA, SILBERMAN, KELLY, VILLANTI, LaROSE, KHOUZAM, BLACK, SLEET, LUCAS, ROTHSTEIN-YOUAKIM, ATKINSON, STARGEL, and LABRIT, JJ., Concur. Opinion subject to revision prior to official publication. 15