FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-3544
_____________________________
TONY GARY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Duval County.
Marianne L. Aho, Judge.
June 28, 2019
RAY, J.
Tony Gary appeals the summary denial of his motion to
correct an illegal sentence. We affirm.
In 2002, Gary was convicted of home invasion robbery and
grand theft auto. The court designated him as a habitual felony
offender on both counts and sentenced him to life in prison with a
thirty-year mandatory minimum as a prison releasee reoffender
for the robbery and a concurrent ten-year term for the theft. Gary
appealed, and this court affirmed without opinion. Gary v. State,
857 So. 2d 882 (Fla. 1st DCA 2003).
Since that time, Gary has brought several collateral attacks
on his convictions and sentences—all unsuccessful—including the
rule 3.800(a) motion subject to this appeal. Of the multiple claims
in his motion before the circuit court, we address the sole issue
raised on appeal. All others are waived. See Watson v. State,
975
So. 2d 572, 573 (Fla. 1st DCA 2008) (“[W]hen a defendant
submits a brief in an appeal from a summary denial of a
postconviction motion, this Court may review only those
arguments raised and fully addressed in the brief.”).
Gary contends that his designation as a habitual felony
offender is improper because the State relied on out-of-state court
documents that were inadmissible hearsay to prove the existence
of one of the predicate felonies. But as the court correctly
explained in its order denying relief, a challenge to the procedure
that led to the imposition of the punishment is not cognizable in a
rule 3.800(a) proceeding. See Martinez v. State,
211 So. 3d 989,
992 (Fla. 2017); see also 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.”). Moreover, Gary
stipulated to the admission of the documents he now alleges to be
hearsay and did not dispute that those documents identified him
as the perpetrator. Because the record shows that Gary was
properly sentenced as a habitual felony offender and that his
claim is otherwise not cognizable in a rule 3.800 proceeding, his
motion was due to be denied.
We warn Gary that frivolous or repetitious postconviction
challenges will not be tolerated as they 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 filings of this nature may result in the imposition of
sanctions, including a bar on pro se filings and a referral to
prison officials for disciplinary proceedings.
AFFIRMED.
B.L. THOMAS, C.J., and WINOKUR, J., concur.
2
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Tony Gary, pro se, Appellant.
Ashley Moody, Attorney General, and Jennifer J. Moore,
Assistant Attorney General, Tallahassee, for Appellee.
3
