Shamar Lavone McCullum v. State of Florida , 263 So. 3d 276 ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-3928
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SHAMAR LAVONE MCCULLUM,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Duval County.
Steven B. Whittington, Judge.
February 5, 2019
WINSOR, J.
Shamar McCullum appeals the denial of his motion to correct
illegal sentence. We affirm.
In 2006, McCullum pleaded guilty to armed robbery and
attempted second-degree murder. The court sentenced
McCullum—a juvenile at the time of the crime—to concurrent
terms of life imprisonment without the possibility of parole.
McCullum appealed his sentence, and this court affirmed without
opinion. McCullum v. State, 41 So. 3d 896 (Fla. 1st DCA 2010)
(table).
Later, McCullum filed a motion under Florida Rule of
Criminal Procedure 3.800(a), arguing his life sentences were
unconstitutional under Graham v. Florida, 560 U.S. 48 (2010). The
trial court denied the motion, but this court reversed and
remanded for resentencing. McCullum v. State, 60 So. 3d 502 (Fla.
1st DCA 2011). On resentencing, McCullum got concurrent fifty-
year sentences, and he again appealed. While that appeal was
pending, McCullum was resentenced yet again (on an unrelated
basis), receiving the sentence he is currently serving: fifty years for
armed robbery and twenty-five years (concurrent) for attempted
second-degree murder.
In 2015, this court affirmed McCullum’s current sentences.
McCullum v. State, 173 So. 3d 1056 (Fla. 1st DCA 2015).
McCullum had argued that his sentence still violated Graham
because it precluded any possibility of release for fifty years. He
also argued that he should be eligible for sentence review under
section 921.1402—Florida’s post-Graham juvenile sentencing
statute. He acknowledged that the statute said it would apply
prospectively only and that it was enacted after his crime. But he
nonetheless argued the statutory process should apply to his
sentence.
This court affirmed through a citation PCA. McCullum, 173
So. 3d at 1056. We cited two cases: Abrakata v. State, 168 So. 3d
251 (Fla. 1st DCA 2015) and Thomas v. State, 78 So. 3d 644 (Fla.
1st DCA 2011). Id. The first case (Abrakata) held that “absent a
violation of Graham, there is no legal basis to retroactively apply
section 921.1402.” 168 So. 3d at 252. The second case (Thomas)
concluded that a fifty-year sentence was not a life sentence under
Graham. 78 So. 3d at 646-47.
More than a year after we affirmed McCullum’s sentences, the
Florida Supreme Court decided Kelsey v. State, 206 So. 3d 5 (2017).
The court held that for “a narrow class of juvenile offenders, those
resentenced from life to term-of-years sentences after Graham, for
crimes committed before [section 921.1402]’s July 1, 2014, effective
date,” resentencing is appropriate. Id. at 11. Before Kelsey,
McCullum had petitioned the Florida Supreme Court for review of
our decision in his case. After the supreme court decided Kelsey, it
denied McCullum’s petition. McCullum v. State, SC15-1770, 2017
WL 24756, at *1 (Fla. Jan. 3, 2017). Two Justices dissented, citing
Kelsey and other cases and concluding that this court’s decision
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conflicted with supreme court precedent and that McCullum was
entitled to another resentencing.
After all of that, McCullum filed another motion to correct
illegal sentence. Again, McCullum argues that he is entitled to
resentencing under Graham, and he now further argues that he is
entitled to relief under Kelsey. But the law-of-the-case doctrine
precludes our readdressing issues McCullum already pursued
unsuccessfully, including his argument about Kelsey. See State v.
McBride, 848 So. 2d 287, 290-91 (Fla. 2003) (explaining law-of-case
doctrine). We find that the law-of-the-case’s manifest-injustice
exception is inapplicable here, so we affirm.
AFFIRMED.
ROBERTS and RAY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Shamar Lavone McCullum, pro se, Appellant.
Ashley B. Moody, Attorney General, and Barbara Debelius,
Assistant Attorney General, Tallahassee for Appellee.
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