DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CHANCY MALLORY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D19-1222

[July 10, 2019]

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

the Seventeenth Judicial Circuit, Broward County; Martin S. Fein, Judge; 

L.T. Case No. 14-6917CF10A.

Chancy Mallory, Bristol, pro se.

No appearance required for appellee.

PER CURIAM.

Chancy Mallory appeals an order dismissing his motion to correct 

illegal sentence filed pursuant to Florida Rule of Criminal Procedure 

3.800(a). We affirm but write to clarify the procedural differences between 

dismissing successive rule 3.800(a) and rule 3.850 motions.

Mallory argues that his mandatory minimum twenty-year prison 

sentence for attempted second-degree murder is illegal because section 

775.087, Florida Statutes, the 10-20-Life statute, does not apply to 

attempted second-degree murder. His argument is without merit. See 

Hatten v. State, 203 So. 3d 142 (Fla. 2016).

Mallory has raised the same argument in prior motions. The trial court 

properly denied the first motion on the merits. The trial court dismissed 

the subsequent motions, including the motion at issue, as successive 

under Florida Rule of Criminal Procedure 3.850(h). Although dismissal 

was proper, the trial court should have dismissed the motion under rule 

3.800(a)(2).
2

Rule 3.850(h)(2) permits a trial court to dismiss a successive 

postconviction motion under rule 3.850 in the following circumstances:

(2) A second or successive motion is an extraordinary 

pleading. Accordingly, a court may dismiss a second or 

successive motion if the court finds that it fails to allege new 

or different grounds for relief and the prior determination was 

on the merits or, if new and different grounds are alleged, the 

judge finds that the failure of the defendant or the attorney to 

assert those grounds in a prior motion constituted an abuse 

of the procedure or there was no good cause for the failure of 

the defendant or defendant’s counsel to have asserted those 

grounds in a prior motion. When a motion is dismissed under 

this subdivision, a copy of that portion of the files and records 

necessary to support the court’s ruling shall accompany the 

order denying the motion.

In contrast, rule 3.800(a)(2) permits dismissal of a successive motion to 

correct illegal sentence if it “fails to allege new or different grounds for relief 

and the prior determination was on the merits.” Fla. R. Crim. P. 

3.800(a)(2). “There is no prohibition to the filing of successive rule 3.800(a) 

motions so long as the merits of the issue presented have not previously 

been addressed . . . .” Perez v. State, 20 So. 3d 440, 442 (Fla. 4th DCA 

2009); see also State v. McBride, 848 So. 2d 287, 290 (Fla. 2003) (footnote 

omitted) (“Although res judicata may not apply to motions filed under rule 

3.800, the similar, but more narrow, doctrine of collateral estoppel, or 

issue preclusion, does apply.”).

The trial court correctly dismissed Mallory’s successive rule 3.800(a) 

motion to correct an illegal sentence because it failed to allege new or 

different grounds for relief, and Mallory’s argument had previously been 

denied on the merits. This was a dismissal based on rule 3.800(a) and not 

rule 3.850(h)(2).

Affirmed.

WARNER, MAY and DAMOORGIAN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.