Harris v. State, 3D03-3014.

• Decision Date: 04 May 2005
• Docket Number: No. 3D03-3014.,3D03-3014.
• Citation: 901 So.2d 322
• Parties: Maurice HARRIS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

901 So.2d 322

Maurice HARRIS, Appellant, v. The STATE of Florida, Appellee.

No. 3D03-3014.

District Court of Appeal of Florida, Third District.

May 4, 2005.

John H. Lipinski, Miami, for appellant.

Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.

Before GREEN, RAMIREZ and WELLS, JJ.

ON MOTION FOR REHEARING/CLARIFICATION

RAMIREZ, J.

Appellant's motion for rehearing is denied, but clarification is granted. We withdraw the prior opinion issued on April 6, 2005, and issue the following clarified opinion in its place.

Maurice Harris appeals the denial of his motion for post-conviction relief. We affirm the order denying postconviction relief because he never appealed his resentence, and the holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is not retroactive.

Harris was charged with attempted first degree murder with a firearm (Count I) and armed robbery with a firearm (Count II). He was 15 years old at the time that the alleged crimes were committed. A jury trial found him guilty as charged. On direct appeal, in Harris v. State, 674 So.2d 854 (Fla. 3d DCA 1996), this Court vacated the conviction on Count I under the authority of State v. Gray, 654 So.2d 552 (Fla.1995) (holding that attempted felony murder was abolished), and remanded the case with instructions to the trial court to clarify whether it intended to impose a true life sentence without the possibility of parole for his armed robbery conviction in Count II. This Court also certified the following question to the Florida Supreme Court:

WHEN A CONVICTION FOR ATTEMPTED FIRST DEGREE FELONY MURDER MUST BE VACATED ON AUTHORITY OF STATE V. GRAY, 654 SO.2D 552 (FLA.1995), DO LESSER INCLUDED OFFENSES REMAIN VIABLE FOR A NEW TRIAL OR REDUCTION OF THE OFFENSE?

The Supreme Court answered the question, holding that where a conviction for attempted felony murder has been vacated on the basis of Gray, the proper remedy is retrial on any other offenses of an equal or lesser degree which were instructed on at trial. The Supreme Court quashed the decision of this Court and remanded for further proceedings. See State v. Harris, 690 So.2d 1297 (Fla.1997). On May 21, 1997, this Court entered its mandate in the case, vacating the May 22 Harris opinion, adopting the opinion of the Florida Supreme Court, and remanding to the trial court for further proceedings in accordance with the Supreme Court's opinion. On March 6, 1998, the State nolle prossed Count I, the attempted first degree murder count. On March 27, 1998, the case came before the trial court for resentencing. The State noted that Harris did not need to be resentenced because Count I was nolle prossed. The trial court did not agree and proceeded to resentence Harris. After hearing from the victim, Harris, and Harris's mother, the trial court announced that adult sanctions were proper, that the victim suffered extraordinary physical trauma, and imposed an upward departure sentence. The trial court sentenced the defendant to life imprisonment with a three-year minimum mandatory sentence.

The State did not appeal the resentencing.¹ Harris, however, on March 8, 2000, filed a motion for post-conviction relief alleging ineffective assistance of counsel for failing to challenge the reasons for departure. The trial court denied the motion, as well as the motion for rehearing. On December 11, 2001, Harris filed another motion for post conviction relief, relying on Apprendi, and contending that a determination whether the original...