TRA EVAN LINEBERGER

v.

STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

TRA EVAN LINEBERGER, ) ) Appellant, ) ) v. ) Case No. 2D18-3503 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________) Opinion filed February 28, 2020 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Christopher C. Sabella, Judge. Howard L. Dimmig, II, Public Defender, and Carol J. Y. Wilson, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee. KELLY, Judge. Tra Evan Lineberger appeals the order dismissing as successive his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for further proceedings.

In 2009, sixteen-year-old Lineberger received a twenty-eight year sentence for second-degree murder with a firearm. His codefendants, who were also juveniles, were sentenced to life without parole for first-degree murder. After the Supreme Court issued its decision in Miller v. Alabama, 567 U.S. 460 (2012), and Florida enacted a new juvenile sentencing scheme designed to comply with Miller, Lineberger filed a pro se "request . . . and/or motion to resentence" asking to be resentenced under the new sentencing scheme. In his request, he stated that because his codefendants would be entitled to resentencing, equal protection principles required that he be given the same opportunity. The postconviction court denied his motion, and this court affirmed. See Lineberger v. State, 241 So. 3d 135 (Fla. 2d DCA 2017) (table decision). Subsequently, the public defender filed the rule 3.800(a) motion that is the subject of this appeal. Citing Miller and its progeny, the motion argues that Lineberger's sentence is illegal and that he should be resentenced. The postconviction court dismissed the motion as successive. This was error. Rule 3.800(a)(2) states: "Successive motions. A court may dismiss a second or successive motion if the court finds that the motion fails to allege new or different grounds for relief and the prior determination was on the merits." Thus, we have held that a postconviction court should not dismiss as successive a claim raised in a rule 3.800(a) motion unless it raises the specific issue raised and determined on the merits in a prior motion. Williams v. State, 244 So. 3d 1173, 1175 (Fla. 2d DCA 2018); Fuston v. State, 764 So. 2d 779, 780 (Fla. 2d DCA 2000). Lineberger's first "request . . . and/or motion" was not filed under rule 3.800(a), and in it, Lineberger did not argue

that his sentence was illegal. Rather, he argued only that if his codefendants were resentenced, equal protection principles called for him to be resentenced as well. Accordingly, we reverse the order dismissing Lineberger's rule 3.800(a) motion and remand for the postconviction court to consider it on its merits. Reversed and remanded. BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.