# Third District Court of Appeal

State of Florida

Opinion filed August 5, 2015.

Not final until disposition of timely filed motion for rehearing.

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No. 3D15- 1413

Lower Tribunal No. 0 5 -8744

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### Recardo Clayton,

Petitioner,

vs.



### The State of Florida,

Repondent.

A Case of Original Jurisdiction

– Habeas Corpus.

Recardo Clayton, in proper person.

Pamela Jo Bondi, Attorney General, for respondent.

Before SHEPHERD, ROTHENBERG and SCALES, JJ.

PER CURIAM.Appellant Recardo Clayton (“Clayton”) petitions this Court to issue a writ of

habeas corpus pursuant to Florida Rule of Appellate Procedure 9.100. We deny the

petition and issue an order to show cause, as described below.

In 2005, Clayton stole three 12-packs of beer from a gas station store. When

confronted by the store employee at Clayton’s vehicle, Clayton allegedly

threatened the employee with a gun. Clayton was apprehended and charged with

armed robbery.

In June of 2006, a jury convicted Clayton of the lesser offense of robbery

without the use of a firearm. This Court affirmed the final judgment in Clayton v.

State

, 974 So. 2d 1172 (Fla. 3d DCA 2008).

Subsequently, Clayton has filed eight petitions or motions for postconviction relief, including the current petition. 1 As early as 2010, we observed

that several claims in Clayton’s underlying 3.850 motion were “successive and

duplicative.” Clayton v. State

, 34 So. 3d 214, 215 (Fla. 3d DCA 2010) (Mem).

Essentially, Clayton has insisted that his trial counsel was ineffective for not

seeking a new trial in the wake of the jury determining that he did not use a firearm

in the commission of the robbery. One element of the crime of robbery is the “use

1 Clayton v. State

, 994 So. 2d 1179 (Fla. 3d DCA 2008) (Mem); Clayton v. State

, 34 So. 3d 214 (Fla. 3d DCA 2010) (Mem); Clayton v. State

, No. 3D13-960 (Fla.

3d DCA April 22, 2013) (Table); Clayton v. State

, 116 So. 3d 1270 (Fla. 3d DCA

2013) (Table); Clayton v. State

, 121 So. 3d 557 (Fla. 3d DCA 2013) (Table);

Clayton v. State

, 152 So. 3d 582 (Fla. 3d DCA 2014) (Table); and Clayton v. State

, No. 3D15-0699 (Fla. 3d DCA April 7, 2015).

2of force, violence, assault, or putting in fear.” § 812.13(1), Fla. Stat. (2005).

Clayton argues that once the jury found no use of a firearm, then Clayton could not

instill fear in the store employee. Absent this element to sustain a robbery

conviction, Clayton believes that he should have been tried, at most, for theft.

Clayton has maintained this position since his sentencing hearing on July 7,

2006. At this hearing, Clayton’s counsel raised, in the context of sentencing, the

issue of the relationship between a jury finding of no firearm and the robbery

element of fear. The trial judge stated that, based on the testimony, the trial judge

understood the store employee “was consumed with fear.” The trial judge also

stated that the jury was entitled to reach its verdict, and that the verdict was

supported by the evidence. 2

It appears that Clayton misapprehends an essential aspect of his trial: the

jury was entitled to find that Clayton instilled a reasonable fear in the store

2 The record suggests that after the sentencing hearing Clayton’s counsel filed an

untimely Motion for Judgment Notwithstanding the Verdict pursuant to Florida

Criminal Procedure Rule 3.610. This motion was based on the exact same issue

Clayton raised at the sentencing hearing: absent a firearm, the store employee

could not reasonably have been in fear and, therefore, an element supporting a

robbery conviction was missing. In his current petition for writ of habeas corpus,

Clayton avers, as he has done repeatedly and through different approaches in his

post-conviction efforts, that his trial counsel was ineffective in his failure to obtain

a new trial on this basis. Our review of the record, however, does not lead to the

conclusion that counsel’s performance prejudiced Clayton’s defense or that an

error (if one occurred) had an effect on the final judgment. Strickland v. Washington

, 466 U.S. 668, 685-94 (1984); Gore v. State

, 846 So. 2d 461, 466 (Fla.

2003).

3employee, whether or not a firearm was present during the robbery. On this basis,

this Court affirmed the conviction. Clayton v. State

, 974 So. 2d 1172 (Fla. 3d DCA

2008) (Mem). Also on this basis, the trial court denied Clayton’s initial 3.850

motion in May of 2008. The current petition for writ of habeas corpus, which

revives Clayton’s contentions from his earlier post-conviction motions and

petitions, does not present a matter of manifest injustice, as Clayton alleges.

ORDER TO SHOW CAUSE

Clayton is hereby directed to show cause, within forty-five days from the

date of this opinion, as to why he should not be prohibited from filing any further

pro se appeals, petitions, motions, or other proceedings related to his criminal

sentencing in circuit court case number 05-8744.

If Clayton does not demonstrate good cause, we will direct the Clerk of this

Court not to accept any such filings unless they have been reviewed by and bear

the signature of a licensed attorney in good standing with the Florida Bar.

Additionally, and absent a showing of good cause, any such further and

unauthorized filings by Clayton will subject him to appropriate sanctions,

including the issuance of written findings forward to the Florida Department of

Corrections for its consideration of disciplinary action, including forfeiture of gain

time. See § 944.279(1), Fla. Stat. (2014).

The petition is dismissed and an order to show cause is issued.

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