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. 05-8744
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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 post-
conviction 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
1Clayton 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).
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of 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).
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employee, 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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