NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT 

TROLIS KIRBY, ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D12-1080 

 ) 

STATE OF FLORIDA, ) 

 ) 

 Appellee. )

___________________________________) 

Opinion filed July 10, 2015. 

Appeal pursuant to Fla. R. App. P. 

9.141(b)(2) from the Circuit Court for 

Polk County; Beth Harlan, Judge. 

Trolis Kirby, pro se. 

ON REMAND FROM THE SUPREME COURT OF FLORIDA 

CASANUEVA, Judge. 

 This court cited Plott v. State, 86 So. 3d 516 (Fla. 2d DCA 2012) (Plott I), 

when we per curiam affirmed in a citation-only opinion, the postconviction court's denial 

of Trolis Kirby's motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). 

Kirby v. State, 100 So. 3d 693 (Fla. 2d DCA 2012) (table decision). In Plott I, we held 

the defendant’s claim that his upward-departure sentence imposed on resentencing 

violated the dictates of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. 

Washington, 542 U.S. 296 (2004), constituted an error in the sentencing process and 
 -2-

was not cognizable in a rule 3.800(a) motion. Plott I, 86 So. 3d at 518-19. However, 

the supreme court later quashed this court's opinion in Plott I and held that Mr. Plott's 

claim that his sentences were unconstitutionally enhanced without a factual finding by a 

jury was cognizable in a rule 3.800(a) motion. Plott v. State, 148 So. 3d 90, 95 (Fla. 

2014) (Plott II). Furthermore, the supreme court instructed this court to perform a 

harmless error analysis on remand. Id. Based upon this court's citation to Plott I in the 

per curiam opinion, Mr. Kirby successfully sought review in the supreme court, which 

remanded for this court to reconsider this case in light of Plott II. Kirby v. State, 163 So. 

3d 510 (Fla. 2015) (table decision). However, as explained below, the citation to Plott I 

was superfluous to this court's decision, and we again affirm. 

 Mr. Kirby was charged with, convicted of, and sentenced to life in prison 

for a life felony in contravention of section 794.011(3), Florida Statutes (1999), which 

required the jury to find—as elements of the offense—that he committed sexual battery 

on a person twelve years or older, without the victim's consent, and in the process used 

or threatened to use a deadly weapon or used actual physical force likely to cause 

serious personal injury. In his rule 3.800(a) motion, Mr. Kirby claimed that the lack of a 

jury finding on the elements of actual physical force or use or threat to use a deadly 

weapon rendered his sentence illegal under Apprendi, 530 U.S. at 466. But Mr. Kirby's 

life sentence was within the statutory maximum for the offense and the jury necessarily 

found that the State proved the elements of the crime beyond a reasonable doubt, so 

his sentence is not illegal under Apprendi. 

 Our citation to Plott I in the Kirby decision was merely meant to inform Mr. 

Kirby of this court's opinion—now held to be erroneous—that Apprendi errors of the sort 
 -3-

Mr. Kirby claimed existed were not cognizable in a rule 3.800(a) motion. Moreover, we 

also appropriately cited Shortridge v. State, 884 So. 2d 321 (Fla. 2d DCA 2004), to 

indicate that Mr. Kirby's challenge was essentially to the proof of the underlying 

elements of the offense and not to the illegality of the sentence. This is not a case in 

which the principles of either Apprendi or Plott I are implicated. As stated above, the 

citation to Plott I was unnecessary and did not constitute the basis for this court's 

affirmance. Having again reviewed the record on appeal, we hold that the 

postconviction court properly denied Mr. Kirby's rule 3.800(a) motion, and we affirm. 

 Affirmed. 

NORTHCUTT and SILBERMAN,1 JJ., Concur. 

 1Judge Silberman was substituted for Judge Whatley, who retired while 

this appeal was on review in the Florida Supreme Court.