Donald McCormick v. State of Florida , 186 So. 3d 1111 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DONALD McCORMICK,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D15-3841
[March 9, 2016]
Appeal of order denying rule 3.800 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Bernard I. Bober,
Judge; L.T. Case No. 90-7114 CF10A.
Donald McCormick, South Bay, pro se.
No appearance required for appellee.
PER CURIAM.
Donald McCormick appeals an order summarily denying his rule
3.800(a) motion to correct illegal sentence. We affirm and write to caution
the appellant against filing frivolous pleadings.
McCormick was convicted of second-degree murder in 1991. His
written sentence reflects he was sentenced to life imprisonment with a
fifteen-year mandatory minimum as a habitual violent felony offender
(HVFO). See § 775.084(4)(b)1., Fla. Stat. (1991) (providing that an HVFO
offender who commits a felony of the first degree may be sentenced to “life”
and “shall not be eligible for release for 15 years”).
In his pro se motion, McCormick admits the trial court orally found him
to be an HVFO and sentenced him to life imprisonment, but claims the
fifteen-year mandatory minimum term is illegal because the court did not
orally pronounce it. This claim is frivolous. See Whyms v. State, No. 4D15-
3473, 2016 WL 627879 (Fla. 4th DCA Feb. 17, 2016).
The sentencing transcript attached to the order on appeal reflects that
the trial court orally declared McCormick to be an HVFO and sentenced
him to life imprisonment. Immediately thereafter, the court asked the
prosecutor whether “[t]here is a mandatory five years?” The prosecutor
answered: “It is fifteen years that he must serve without eligibility of
parole.” The hearing concluded with no further comments regarding
McCormick’s sentence.
As we discussed in Whyms, the contention that a “mandatory minimum
was not orally pronounced because the judge did not expressly say so at
the precise moment the judge announced the sentence,” lacks merit where
the record makes clear that the judge imposed the mandatory minimum
sentence. Whyms, 2016 WL 627879, at *1. In the present case, it is clear
from the judge’s question—asked after having just declared McCormick to
be an HVFO—that the judge intended to impose and actually did impose
the mandatory minimum term required by the HVFO statute and reflected
on McCormick’s written sentence.
In his second claim, McCormick challenges the State’s failure to present
the testimony of a fingerprint analyst to establish the identity of the
defendant who committed the predicate felony for his HVFO designation—
another second-degree murder. Because McCormick does not deny he
committed the predicate felony, this claim is not cognizable in a rule
3.800(a) motion. Cf. White v. State, 60 So. 3d 1101, 1103 (Fla. 5th DCA
2011) (“[A] defendant’s contention that she did not have the predicate
felonies required to support an HFO designation is cognizable under a rule
3.800(a) claim if her entitlement to relief is clear from the face of the
record.”).
In addition, defense counsel did not contest that McCormick qualified
as an HVFO. At the sentencing hearing, defense counsel plainly stated: “I
am not arguing the fact that he was convicted before.” Finally,
McCormick’s prior judgment and sentence for the predicate felony is in the
record. Based on the release date from his previous prison sentence and
the date he committed the felony for which he was sentenced, McCormick
undoubtedly qualifies as an HVFO. § 775.084(1)(b), Fla. Stat. (1991); Ives
v. State, 993 So. 2d 117, 120 (Fla. 4th DCA 2008) (“A deficiency merely in
the procedure employed, where the movant actually qualifies for an
enhanced sentence, does not result in an illegal sentence.”).
McCormick filed the instant motion more than twenty-three years after
his sentencing, and after having filed other meritless postconviction
motions and appeals. We warn him that this court will not tolerate
repetitious and frivolous postconviction filings, which diminish “the ability
of the courts to devote their finite resources to the consideration of
legitimate claims.” State v. Spencer, 751 So. 2d 47, 48 (Fla. 1999). Future
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frivolous filings by McCormick may result in the imposition of sanctions
and his referral to prison officials for disciplinary proceedings. Id. at 48–
49; see also § 944.279(1), Fla. Stat. (2015).
Affirmed. Appellant warned against frivolous filing.
STEVENSON, DAMOORGIAN and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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