Tatum v. State
| Decision Date | 20 January 2010 |
| Docket Number | No. 3D09-2623.,3D09-2623. |
| Citation | 27 So.3d 700 |
| Parties | Lorenzo TATUM, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
v.
The STATE of Florida, Appellee.
[27 So.3d 701]
Lorenzo Tatum, in proper person.
Bill McCollum, Attorney General, for appellee.
Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
WELLS, Judge.
Lorenzo Tatum appeals from an order denying the instant collateral attack on the sentence imposed on him in 1993. Tatum's arguments have either already been adjudicated multiple times, once by this Court, or are now time barred from further consideration.
Tatum was sentenced to 40 years in prison on December 3, 1993, after pleading guilty to second degree murder, armed robbery, aggravated battery, armed burglary, unlawful possession of a firearm, and grand theft in the third degree in case number 91-42776D.1 In June 1995, Tatum filed his first Florida Rule of Criminal Procedure 3.800 motion claiming that he was (1) illegally sentenced as an adult in violation of section 39.059 of the Florida Statutes, and (2) denied due process because "[a]fter the direct and redirect testimonies of the witnesses' [sic], the trial judge told Mr. Tatum, that he has determined to impose adult sanctions as opposed to juvenile sanctions in the case."
Claiming that he had received no order on this motion, in November 1998, Tatum filed a Florida Rule of Criminal Procedure 3.850 motion claiming that his guilty plea was involuntary because he was improperly treated and sentenced as an adult rather than as a juvenile in violation of section 39.059 of the Florida Statutes and because he was denied due process since his parents were not contacted before he accepted a plea and was sentenced. In light of
subsequent proceedings, this motion apparently was denied.
In July of 1999, Tatum filed his second Rule 3.800 motion, at least his third motion attacking his agreed to sentence. This motion claimed that Tatum's sentence was illegal because:
• it violated section 39.059 of the Florida Statutes;
• absent a jury determination that he had used a firearm when he committed the second degree murder for which he was being sentenced, the maximum sentence he could receive for second degree murder, a first degree felony, was 30 years in prison rather than the 40 year sentence he received;
• a statutory three-year minimum mandatory sentence for use of a firearm was improperly imposed;
• no additional crimes should have been scored because they were all part of the same undertaking; and
• no written reasons were given for the purported departure 40 year sentence.
On August 3, 1999, the court below rejected each of these arguments confirming (1) that the maximum sentence for second degree murder with a firearm—to which Tatum more than once has conceded that he pled guilty—is life imprisonment; (2) the maximum penalty for attempted first degree murder with a firearm, armed robbery with a firearm, and armed burglary with a firearm—to which Tatum also concededly pled guilty—are also punishable by life imprisonment; (3) a 40 year sentence does not exceed a statutory maximum of life; (4) Tatum's argument regarding the minimum mandatory sentence was moot since he had already served that sentence; and, (5) although Tatum's section 39.059 claim should have been raised on direct appeal and was procedurally barred, no error could be demonstrated because the sentencing court had the discretion to determine whether to sentence Tatum, who had been charged as an adult, as a juvenile or as an adult.
Tatum appealed from that order, and in case number 3D99-2411, this Court expressly concluded that each of Tatum's claims was without merit:
Lorenzo Tatum appeals an order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). He argues that he was a juvenile at the time he pled guilty to second degree murder and other crimes in 1993, and contends that his sentence is illegal because the sentencing court did not make findings regarding the necessity of adult sanctions. See § 39.059(7)(d), Fla. Stat. (1991). We reject that claim on authority of Summers v. State, 684 So.2d 729 (Fla.1996). We find no merit to appellant's remaining points and reject them without discussion.
Affirmed.
Tatum v. State, 741 So.2d 1266, 1266 (Fla. 3d DCA 1999) (emphasis added).
Undeterred, in June of 2005, Tatum filed yet another Rule 3.800 motion. This motion, like the last, claimed (1) that Tatum's second degree murder conviction should not have been "enhanced" for use of a firearm from a first degree to a life felony; (2) his scoresheet should have been scored for an "unenhanced" second degree murder, which is a first degree felony, rather than as a life felony "enhanced" for use of a firearm; and, (3) that the remainder of his convictions had been mis-scored.
In November 2005, the trial court denied the motion, confirming that these claims had already been made and previously denied. Although Tatum's June 2005 motion did not claim that his guilty plea was predicated on an agreement that
he be sentenced within sentencing guidelines, the order denying this motion also stated that the record did not reflect the existence of such an agreement:
PETITIONER LORENZO TATUM complains that the sentencing...
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