FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D20-3457

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ROBERT W. KRAMER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Clay County.

Michael S. Sharrit, Judge.

September 22, 2021

B.L. THOMAS, J.

Appellant appeals from the denial of a rule 3.800(a) motion to 

correct illegal sentence. The appeal is timely. Because Appellant’s 

claims are not cognizable in a 3.800(a) motion, the appeal must be 

affirmed. 

The State charged Appellant with fourteen counts of 

possession of child pornography. Each count was a third-degree 

felony offense in violation of section 827.071(5), Florida Statutes. 

A jury found Appellant guilty on all counts. The criminalpunishment-code scoresheet produced the lowest permissible 

sentence of 52.95 months’ imprisonment. Appellant was 34 years’ 

old. The trial court imposed consecutive five-year sentences on 

each count for an aggregate total sentence of 70 years’ 
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imprisonment. This Court affirmed the judgment and sentence. 

The mandate issued on May 5, 2017. 

Appellant filed a petition alleging ineffective assistance of 

appellate counsel, which this Court denied in August 2019. On 

September 4, 2019, Appellant filed the instant motion. The lower 

tribunal summarily denied the motion in October 2020. This 

Appeal followed. 

In his first claim for relief, Appellant argued below that the 

trial court improperly considered an unsubstantiated allegation of 

capital sexual battery that was pending at that time in a separate 

criminal proceeding. The lower tribunal correctly denied 

Appellant’s claim as it challenged the procedure leading to the 

sentence and not the sentence itself. See Collier v. State, 148 So. 

3d 797, 798 (Fla. 1st DCA 2014). 

Appellant argues for reversal because the sentence resulted 

from a fundamental due process violation. Appellant reads this 

Court’s opinion in Robinson v. State, 215 So. 3d 1262 (Fla. 1st DCA 

2017), and the Supreme Court’s opinion in Wright v. State, 911 So. 

2d 81, 83-84 (Fla. 2005), as authorizing relief. However, neither 

case supports finding that a claim based on considering an 

improper factor at sentencing, an error addressable on direct 

appeal, results in an illegal sentence cognizable in a 3.800(a) 

motion.

In Appellant’s second claim for relief, Appellant argued below 

that the 70-year sentence constituted cruel and unusual 

punishment, violating the 8th Amendment of the United States 

Constitution and Article I, Section 17 of the Florida Constitution. 

He asserted that it was a de facto life sentence, which was grossly 

disproportionate to the third-degree felonies Appellant was 

convicted of committing and the 52.95-month sentence Appellant 

scored as an appropriate sentence on his criminal-punishmentcode scoresheet. The lower tribunal correctly denied Appellant’s 

claim. In doing so, it reasoned that Appellant’s claim was not 

cognizable under rule 3.800(a) and would be untimely under rule 

3.850.
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Appellant argues for reversal because relief is available to 

correct juvenile sentences on the basis that life without parole 

constitutes cruel and unusual punishment, and that rule should 

apply equally to Appellant to allow his claim that the aggregate 

70-year sentence is cruel and unusual. However, “[a] rule 3.800(a) 

motion to correct an illegal sentence is not the proper vehicle for 

challenging a sentence on the basis that it violates the 

constitutional prohibition against cruel and unusual punishment.”

See Lykins v. State, 894 So. 2d 302, 303 (Fla. 3d DCA 2005)

(quoting State v. Spriggs, 754 So. 2d 84, 84 (Fla. 4th DCA 2000)). 

Appellant’s case, like Lykins and Spriggs, calls for a 

proportionality review. See Hale v. State, 630 So. 2d 521, 525 (Fla. 

1993). The line of cases granting relief to juveniles relied on the 

conclusion in Graham1 and Miller2 that certain sentences could 

not be imposed on the juvenile class of offenders, which led to new 

statutory sentencing requirements for juvenile offenders. See 

McCrae v. State, 267 So. 3d 470, 472 (Fla. 1st DCA 2019) (rejecting 

3.800(a) claim where appellant’s original sentence was not 

inconsistent with Graham or Miller). Appellant has not pointed to 

any specific prohibition against the sentences imposed in this case. 

Appellant’s sentence constitutes a legal punishment. See § 

921.0024(2) (“The permissible range for sentencing shall be the 

lowest permissible sentence up to and including the statutory 

maximum, ....”); 775.021(4), Fla. Stat. (2008) (“Whoever, in the 

course of one criminal transaction or episode, commits an act or 

acts which constitute one or more separate offenses, upon 

conviction and adjudication of guilty, shall be sentenced separately 

for each criminal offense; and the sentencing judge may order the 

sentences to be served concurrently or consecutively.”). 

AFFIRMED.

ROBERTS and LONG, JJ., concur.

1 Graham v. Florida, 560 U.S. 48 (2010). 

2 Miller v. Alabama, 567 U.S. 460 (2012). 
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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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Robert David Malove of the Law Offices of Robert David Malove, 

P.A., Fort Lauderdale, for Appellant.

Ashley Moody, Attorney General, and Heather Flanagan Ross, 

Assistant Attorney General, Tallahassee, for Appellee.