Hastings v. Krischer, 4D02-2426.

• Decision Date: 02 January 2003
• Docket Number: No. 4D02-2426.,4D02-2426.
• Citation: 840 So.2d 267
• Parties: Jeffrey R. HASTINGS, Petitioner, v. Hon. Barry KRISCHER, State Attorney, Respondent.
• Court: Florida District Court of Appeals

840 So.2d 267

Jeffrey R. HASTINGS, Petitioner, v. Hon. Barry KRISCHER, State Attorney, Respondent.

No. 4D02-2426.

District Court of Appeal of Florida, Fourth District.

January 2, 2003.

Rehearing Denied April 7, 2003.

Jeffrey R. Hastings, Daytona Beach, pro se.

No response required for respondent.

PER CURIAM.

By order dated September 6, 2002, this court denied the pro se petition for writ of mandamus filed by Jeffrey R. Hastings (Petitioner). Petitioner sought to compel State Attorney Barry Krischer (Krischer) and the circuit court to "obey the law" concerning habitualization and to resentence him without habitualization, citing the failure to comply with the procedural requirements of section 775.084, Florida Statutes (1979), at his 1980 sentencing. Concurrent with the denial of his petition, this court ordered Petitioner to show cause why he should not be prohibited from filing any further pro se petition or appeal raising issues that were previously raised in any prior petition or appeal. Petitioner has now filed his response, which merely duplicates some of his earlier arguments.

In L.T. Case No. 79-3126, Petitioner was charged by indictment with six counts of first degree murder and three counts of attempted first degree murder, all alleged to have occurred on August 13, 1979, in connection with the alleged dumping overboard of nine Haitians during a smuggling operation from the Bahamas to Florida. A jury convicted him in 1980 of six counts of manslaughter and three counts of simple assault, all lesser included offenses. Petitioner was determined to be a habitual offender and was sentenced to thirty years for each manslaughter, the sentences to be served consecutively, for a total sentence of 180 years. (The sentences for the assaults have been fully served and are not at issue.).

The mandate issued in his direct appeal on April 26, 1982. A long history of pro se collateral attacks on his convictions and sentences ensued.¹ He filed the instant petition for writ mandamus with this court on June 17, 2002. In it, he sought to compel the state attorney to comply with section 775.084, Florida Statutes (1979), by giving notice that an enhancement hearing would be held, and with section 775.084(3)(b), by serving written notice of the state's intent to habitualize. Petitioner also sought to compel both the state attorney and the trial court to comply with section 775.021(1)(language susceptible of differing constructions should be construed favorably to accused) and (4)(providing separate sentencing for each offense committed in a criminal episode, excluding lesser included offenses, with sentences to be either concurrent or consecutive), and with Hale v. State, 630 So.2d 521 (Fla.1993)(holding habitual offender statute did not authorize imposition of consecutive habitual felony offender sentences for multiple crimes committed during single criminal episode), cert. denied, 513 U.S. 909, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994). As support for his argument that the six manslaughter counts arose from the same criminal episode for purposes of precluding consecutive habitual sentencing, Petitioner attached affidavits from his trial counsel and himself, stating that the state and trial court agreed prior to trial that the offenses arose from a single incident (for purposes of denying his request for severance of the counts for separate trials).

Clearly, mandamus is not available to remedy alleged errors in a criminal case where the avenues of direct appeal and motions for postconviction relief provide an adequate remedy. See Jacobs v. State, 827 So.2d 294 (Fla. 5th DCA 2002)

; Donald v. State, 755 So.2d 816 (Fla. 1st DCA 2000)(denying petition for writ of mandamus complaining of actions or omissions of trial judge and defense counsel in criminal prosecution, for which direct appeal and postconviction relief are adequate remedies).

In this case, if there had been any defect in the giving of notice that the state would seek to enhance Petitioner's sentence under the habitualization statute, or in its giving notice of a hearing on that issue, so that Petitioner arguably was prejudiced in his ability to prepare his defense, his attorney should have preserved the error for appeal and the issue should have been raised on direct appeal. If trial counsel failed to preserve the error, then Petitioner's remedy would have been a timely motion pursuant to rule 3.850, Florida Rules of Criminal Procedure. See Fla. R.Crim. P. 3.850(b). If trial counsel preserved the error but appellate counsel failed to raise it on appeal, the remedy would have been a timely petition alleging the ineffective assistance of appellate counsel. See Fla. R.App. P. 9.141(c)(4). Such defects in procedure would not make the resulting habitual sentence "illegal" so as to be susceptible to challenge at any time. Compare Carter v. State, 786 So.2d 1173 (Fla.2001)

(holding that imposition of habitual offender sentence may be challenged pursuant to rule 3.800(a) at any time where no judge could have inflicted the sentence under any set of factual circumstances, such as when the felony was one for which the statute did not provide for habitualization at the time the offense was committed), with Hollis v. State, 763 So.2d 1155 (Fla. 4th DCA 2000)(affirming order summarily denying rule 3.800(a) motion; claim that state failed to serve notice of intent to habitualize required evidentiary hearing, thus, motion to correct allegedly illegal sentence could not be used to resolve issue of notice), and Hope v. State, 766 So.2d 343 (Fla. 5th DCA 2000)(mere allegation of defective habitualization process does not constitute illegal sentence).

Even if it could be considered, Petitioner cannot be entitled to relief from his misreading the 1979 version of section 775.021(4)² as precluding consecutive sentencing whenever a defendant is found guilty of a lesser included offense; the provision merely precludes sentencing a defendant for an offense as well as sentencing him/her for any lesser included offense(s) for which he/she could also have been found guilty.

Finally, the argument that Petitioner's six manslaughter offenses were committed within a single criminal episode so as to preclude consecutive habitual sentencing under Hale was decided on the merits in a rule 3.850 motion, which he timely filed within two years after the issuance of State v. Callaway, 658 So.2d 983 (Fla.1995)(announcing the retroactive application of Hale ). The trial court's finding that the record demonstrated conclusively that Petitioner had committed six separate and distinct acts of manslaughter, as demonstrated by the state's response and attachments, was affirmed by this court on the merits, although per curiam and without opinion, in Closed Case No. 4D97-825. Hastings v. State, 701 So.2d 881 (Fla. 4th DCA 1997)(Table).

In response to this court's order to show cause, Petitioner merely reasserts the same issues, arguing that they were not addressed on the merits. He emphasizes that he did not receive notice of the state's intent to seek habitual sentencing or notice of the enhancement hearing, citing cases in which such defects resulted in reversal on direct appeal. By motion to supplement his response, he asks this court to treat the instant mandamus petition as a rule 3.800(a) motion and direct the trial court to address it on the merits.

The notice issues raised by Petitioner are not ones that can be considered on the merits at this late date. Further, if there was evidence in the record bearing on the question of whether Petitioner's offenses were committed in one criminal episode, it should have been raised in the rule 3.850 motion in which that issue was addressed on the merits. The law of the case doctrine applies to a rule 3.800(a) motion when the defendant seeks to litigate a specific issue adversely decided in an earlier postconviction proceeding, even if the issue pertains to the legality of the sentence, see Raley v. State, 675 So.2d 170, 173-74 (Fla. 5th DCA),

cause dismissed, 678 So.2d 1287 (Fla.), appeal dismissed, 683 So.2d 484 (Fla.1996), so long as the earlier motion was considered on the merits and not denied on procedural grounds, cf. Kelly v. State, 739 So.2d 1164 (Fla. 5th DCA 1999)(consideration not barred by law of the case because motion was first denied on procedural grounds).

After due consideration, we conclude that Petitioner should be barred from any further pro se filings in this court, either an appeal or an original petition, raising the same issues as previously raised in any prior petition or appeal, as his repetitive duplicative filings have impeded this court's ability to devote its resources to the consideration of legitimate claims. We hereby prohibit Petitioner from filing any petition or appeal that raises such issues in this court unless such filing is signed by a member of The Florida Bar. If Petitioner violates this prohibition, he will face sanctions. See Prince v. State, 719 So.2d 346 (Fla. 4th DCA 1998),

review denied, 732 So.2d 328 (Fla.1999).

FARMER, STEVENSON and MAY, JJ., concur.

1. In 1985, Petitioner filed a rule 3.850 motion for postconviction relief in which he raised the same grounds as were raised in his direct appeal. The trial court denied the motion and this court affirmed per curiam without opinion. Hastings v. State, 482 So.2d 361 (Fla. 4th DCA 1986)(Table).

On December 7, 1989, Petitioner filed a petition for writ of habeas corpus with the circuit court, raising some of the issues previously raised on appeal and in the rule 3.850 motion; he later filed an amendment to raise double jeopardy and receiving a disparate sentence from his black co-defendant, who was sentenced to only fifteen years concurrently for the same offenses; he later filed "supplemental authority," asserting his sentences should be concurrent because all charges occurred in the same episode. The trial court denied the petition, finding it...