DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JEROME McCLELLION,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D15-4050

[March 16, 2016]

Appeal of order denying rule 3.800 motion from the Circuit Court for 

the Seventeenth Judicial Circuit, Broward County; Paul L. Backman, 

Judge; L.T. Case No. 01-16187 CF10A.

Jerome McClellion, Crawfordville, pro se.

No appearance required for appellee.

PER CURIAM.

Jerome McClellion appeals the denial of his rule 3.800(a) motion to 

correct an illegal sentence. We affirm because Appellant has not shown 

that his sentence is illegal and because the motion attempts to bring an 

untimely and procedurally-barred challenge to a conviction.1 We write to 

further clarify that an unpreserved trial court error in allowing a jury to 

consider a lesser offense is not a conviction for an uncharged crime that 

can be raised at any time in a postconviction motion.

Background

Appellant was charged in count one with aggravated battery on a law 

enforcement officer (LEO) based on the use of a deadly weapon (a motor 

vehicle). In October 2001, a jury convicted Appellant of a lesser offense 

included on the verdict form: aggravated assault on an LEO.2 As to this 

1 Appellant’s motion also asserted other meritless claims that he has not argued 

on appeal and which are deemed abandoned. Hammond v. State, 34 So. 3d 58, 

59 (Fla. 4th DCA 2010).

2 Appellant was convicted of other counts, but they are not at issue on appeal.
2

count, the court sentenced Appellant as a habitual felony offender to thirty 

years in prison with a fifteen-year mandatory minimum as a prison 

releasee reoffender (PRR). On direct appeal, we reversed the convictions 

on counts two and three because those charges occurred in Dade County 

and venue was not proper in Broward. McClellion v. State, 858 So. 2d 379, 

380 (Fla. 4th DCA 2003). His conviction and sentence on count one were 

not disturbed. 

Appellant filed this rule 3.800(a) motion in December 2014. His motion 

claims that aggravated assault on a LEO does not qualify for PRR 

sentencing. 

Analysis

Appellant has not shown that his PRR sentence is illegal. First, 

although Appellant relies on Walker v. State, 965 So. 2d 1281 (Fla. 2d DCA 

2007), that case is inapplicable because it concerned a conviction for 

simple battery on a law enforcement officer, id. at 1283, and “simple 

battery” is not enumerated in the PRR statute, as distinguished from 

“aggravated assault with a deadly weapon.” § 775.082(9)(a)1., Fla. Stat. 

(2000).3 

The offense of “aggravated assault,” even without a deadly weapon,

qualifies for PRR sentencing under the catchall provision in section 

775.082(9)(a)1.o, which includes “[a]ny felony that involves the use or 

threat of physical force or violence against an individual.” Id.; Wheeler v. 

State, 898 So. 2d 1052, 1053 (Fla. 2d DCA 2005). The Florida Supreme 

Court has recognized that an assault necessarily involves a threat of 

violence and qualifies under the catchall provision in the PRR statute. 

State v. Hackley, 95 So. 3d 92, 94 (Fla. 2012); see also Shaw v. State, 26 

So. 3d 51, 53 (Fla. 5th DCA 2009). 

3 “Aggravated assault with a deadly weapon” is expressly enumerated and 

qualifies for PRR sentencing. § 775.082(9)(a)1.j., Fla. Stat. (2000). Appellant, 

whose charge was based on use of deadly weapon, has not shown that the face 

of the record establishes that the jury did not make a finding that a deadly 

weapon was used in the aggravated assault in this case. See § 784.021, Fla. Stat. 

(2000) (defining “aggravated assault” as an assault that is committed (1) with a 

deadly weapon without intent to kill or (2) with an intent to commit a felony); see 

also Johnson v. State, 60 So. 3d 1045, 1050 (Fla. 2011) (stating that to be 

correctable under rule 3.800(a), the illegality in the sentence must be identifiable 

from the face of the record, and the burden is on the movant to demonstrate an 

entitlement to relief from the face of the record); Gentile v. State, 87 So. 3d 55, 57 

(Fla. 4th DCA 2012) (explaining that only “a clear jury finding” is required for an 

enhancement statute to apply). 
3

Elsewhere in his motion, and in his rehearing motion, Appellant 

claimed “manifest injustice” and argued that he was convicted of an 

uncharged offense because the elements of the lesser offense of aggravated 

assault were not charged in the information. “Aggravated assault is not a 

necessarily lesser included offense of aggravated battery and it can be 

considered an included offense only, if at all, where the information 

charges the elements of both and the facts necessary to support both.” 

Salas v. State, 591 So. 2d 257, 258 (Fla. 4th DCA 1991). Appellant relies 

on Figueroa v. State, 84 So. 3d 1158 (Fla. 2d DCA 2012), where the court 

found manifest injustice and granted habeas corpus relief where a 

conviction was based on a “fundamentally defective” information that 

failed to allege an essential element of the charged offense. Id. at 1161-

62.

Appellant’s challenge to his conviction is untimely and procedurally 

barred, and he cannot circumvent these bars by framing his claim as a 

challenge to the sentence. The time for filing a postconviction motion 

challenging the conviction in this case expired in 2005, two years after the 

judgment and sentence became final on direct appeal. Fla. R. Crim. P. 

3.850(b). Incanting the words “manifest injustice” does not excuse the 

procedural bars. See Cuffy v. State, 40 Fla. L. Weekly D687, D688 (Fla. 

4th DCA Mar. 18, 2015). 

Moreover, Appellant’s reliance on Figueroa is misplaced. The Figueroa

court determined that the information was “fundamentally defective” 

because it did not charge the defendant with possession of a firearm 

during the commission of the robbery. 84 So. 3d at 1159-60. The court 

determined that the conviction for robbery with a firearm could not stand 

because the essential element of possession of a firearm was omitted from 

the body of the information and was not otherwise properly charged. Id.

at 1161. Figueroa did not involve a lesser offense, and the opinion in 

Figueroa recognized that the defect in the information had been raised on 

direct appeal but was overlooked by the reviewing court. Id. at 1162 

(recognizing that relief should have been granted on direct appeal). In 

contrast, in this case, Appellant does not allege that the error was 

preserved by an objection at trial, and he did not raise it on direct appeal. 

Thus, Appellant’s claim that he was improperly convicted of a lesser 

offense is a procedurally barred claim of trial court error that cannot be 

raised for the first time in a postconviction proceeding. Any error in 

instructing the jury as to this lesser offense could have been objected to at 

trial and raised on direct appeal if necessary. See, e.g., Negron v. State, 

938 So. 2d 650 (Fla. 4th DCA 2006). The alleged error in instructing the 
4

jury as to this lesser offense is not an error that can be raised at any time 

and does not provide any basis for untimely postconviction relief. See 

Nesbitt v. State, 889 So. 2d 801, 803 (Fla. 2004) (holding that, when a trial 

court erroneously instructs the jury on a lesser offense, the error is not 

per se fundamental, and a contemporaneous objection will generally be 

necessary to preserve the error for review). 

Nesbitt applied the fundamental error analysis of Ray v. State, 403 So. 

2d 956 (Fla. 1981), which applies when a defendant fails to object to an 

erroneous lesser included charge. Under Ray, 

[I]t is not fundamental error to convict a defendant under an 

erroneous lesser included charge when he had an opportunity 

to object to the charge and failed to do so if: 1) the improperly 

charged offense is lesser in degree and penalty than the main 

offense or 2) defense counsel requested the improper charge 

or relied on that charge as evidenced by argument to the jury 

or other affirmative action. 

Id. at 961 (footnote omitted). The Second District’s decision in Figueroa 

could not overrule the Florida Supreme Court’s precedent set forth in

Nesbitt and Ray. 

In the present case, whether Appellant’s conviction for the lesser 

offense constituted a fundamental error does not control our 

postconviction analysis. The claim simply cannot be raised in a 

postconviction motion. The fact that an error is “fundamental,” so that it 

can be raised on direct appeal despite the lack of objection at trial, does 

not necessarily mean the error can be raised at any time in a 

postconviction proceeding. See Hughes v. State, 22 So. 3d 132, 136-37

(Fla. 2d DCA 2009) (“[F]undamental error is not a valid ground for an 

untimely postconviction motion unless one creates a unique definition of 

‘fundamental error’ for this particular purpose.”). In any case, aggravated 

assault on an LEO is lesser in both degree and penalty than aggravated 

battery on an LEO. Aggravated assault on an LEO is a second degree 

felony. § 784.07(2)(c), Fla. Stat. Aggravated battery on an LEO is a first 

degree felony. § 784.07(2)(d). Thus, the error would not be fundamental 

under Ray.

Appellant mistakenly relies on Achin v. State, 436 So. 2d 30 (Fla. 1982), 

but in that case, the defendant was convicted of a nonexistent offense, 

which is not the case here. Id. at 32.
5

Here, any error in instructing the jury as to the lesser offense of 

aggravated assault on a law enforcement officer had to be preserved by 

objection at trial. The claim of trial court error is procedurally barred from 

being raised in a postconviction motion. Appellant cannot spring this 

challenge to his conviction years after the fact in a motion to correct illegal 

sentence. Appellant’s claims lack merit and were properly denied.

Affirmed.

CIKLIN, C.J., and LEVINE and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.