Funk v. Secretary, Department of Corrections (Hillsborough)

Filing 10

ORDER granting in part and denying in part the Respondent's 6 motion to dismiss Funk's petition for a writ of habeas corpus. Ground One is DISMISSED for lack of jurisdiction. Ground Two is DENIED as meritless. For Ground Two, a certificate of appealability and leave to appeal in forma pauperis are DENIED. The Clerk is DIRECTED to enter judgment against Funk on Ground Two and to CLOSE this case. Signed by Judge Mary S. Scriven on 3/7/2025. (JT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JASON MATTHEW FUNK,
Petitioner,
v.

Case No. 8:24-cv-1518-MSS-NHA

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
__________________________________/
ORDER
Funk files a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging
his state court convictions. (Doc. 1) The Respondent moves to dismiss the petition as an
unauthorized second or successive petition (Doc. 6), and Funk files a reply. (Doc. 8)
An indictment charged Funk with first-degree murder (Count One), attempted sexual
battery (Count Two), robbery (Count Three), burglary of a conveyance (Count Four),
cannabis manufacturing (Count Five), and tampering with physical evidence (Count Six).
(Doc. 7-2 at 11–15) Because the prosecutor agreed to waive the death penalty (Doc. 7-2 at
420), Funk pleaded guilty to the crimes charged in the indictment. (Doc. 7-2 at 17–19)
At the plea hearing, the prosecutor summarized evidence that demonstrated a factual
basis for the plea. (Doc. 2-1 at 16–27) Funk murdered an insurance adjuster, who visited
Funk’s home, by inflicting severe blunt trauma to her head with a muffler. (Doc. 2-1 at 18)
The adjuster’s blood was splattered inside Funk’s home and on Funk’s shoes, and police
officers found her body without pants and underwear in the Hillsborough River behind Funk’s
home. (Doc. 2-1 at 18–21, 26) Pieces of charred carpet removed from inside the home were

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in a burn pit in the backyard. (Doc. 2-1 at 18–20) Funk’s fingerprint appeared on an envelope
in the adjuster’s car. (Doc. 2-1 at 22) Funk purchased items at a nearby store with the
adjuster’s credit card. (Doc. 2-1 at 23–24) Nineteen marijuana plants were in a closet in the
home. (Doc. 2-1 at 26)
On March 23, 2005, the trial judge sentenced Funk to life in prison for the murder
conviction (Count One), a concurrent life sentence for the robbery conviction (Count Three),
a concurrent fifteen years for the attempted sexual battery conviction (Count Two), and a
concurrent five years for all remaining convictions. (Doc. 7-2 at 21–32) Funk did not appeal.
In 2012 and 2016, Funk unsuccessfully moved for post-conviction relief in state court.
(Doc. 7-2 at 4–5) In 2021, Judge Charlene Honeywell dismissed as time-barred an earlier
Section 2254 petition attacking the state court judgment. Funk v. Sec’y, Dep’t Corrs., No. 8:17cv-2864-CEH-JSS (M.D. Fla.), ECF. No. 21. The court of appeals denied Funk a certificate
of appealability. Order, Funk v. Sec’y, Dep’t Corrs., No. 21-10693-F (11th Cir. July 22, 2021).
On December 8, 2021, the post-conviction court granted in part Funk’s motion to
correct his sentence as follows (Doc. 7-2 at 345–46) (state court record citations omitted):
In his motion, Defendant only raises issues with Counts One and
Three. In the May 24, 2021, order, the Court denied the claims
pertaining to Count One. With regard to Count Three,
Defendant claims his sentence is illegal because it exceeds the
statutory maximum. Specifically, Defendant claims his life
sentence for robbery with a weapon exceeds the maximum term
of thirty years’ imprisonment. Defendant argues that there is a
difference between the maximum sentence for robbery with a
deadly weapon and robbery with a weapon. Defendant claims
that while a conviction for “robbery with a deadly weapon”
under Section 812.13(2)(a), Florida Statutes, is “punishable by
imprisonment for a term of years not exceeding life,” he was
charged with “robbery with a weapon” under Section
812.13(2)(b), which is “punishable by imprisonment not
exceeding [t]hirty years.” Ultimately, Defendant requests the

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Court vacate his conviction and sentence and resentence him on
Count Three.
In its response, the State concedes that “Count Three of the
indictment failed to allege the necessary element that the weapon
was deadly.” The State also concedes that “[D]efendant pled to
a first-degree felony on Count Three and cannot be sentenced to
more than thirty years in prison on that count.” The State
requests the Court to correct Defendant’s sentence on Count
Three.
In the instant case, with regard to Count Three, the Court finds
that Defendant was convicted of robbery with a weapon under
Section 812.13(2)(b), Florida Statutes (2005), a first-degree
felony. For his robbery with a weapon conviction, Defendant
could have been sentenced up to thirty years’ prison or, when
specifically provided by statute, up to life in prison. See
§ 775.082(3)(b), Fla. Stat. (2005). Because Defendant was
sentenced to life in prison on Count Three, the Court finds
Defendant’s sentence on Count Three is illegal.
Accordingly, the Court finds Defendant’s request to correct an
illegal sentence must be granted to the extent it is only on Count
Three and Defendant is entitled to relief in the form of a
resentencing in Case Number 04-CF-21948.
The life sentence for the murder conviction remained undisturbed as did the sentences on all
the other Counts except the robbery Count.
At the resentencing hearing on the robbery conviction, the trial judge sentenced Funk
to thirty years in prison and entered the amended judgment nunc pro tunc to March 23, 2005,
the date the original judgment was entered. (Doc. 2-1 at 65) The title of the amended
judgment is “Judgment Resentence as to Count Three, Nunc Pro Tunc to March 23, 2005”
(Doc. 7-2 at 428), and the trial judge amended the sentence as follows (Doc. 7-2 at 429):
“Amended Sentence — Court set aside sentence imposed on Count Three, nunc pro tunc to
March 23, 2005[;] Counts One, Two, Four, Five, [and] Six to remain as imposed.”

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In his second federal petition, Funk asserts the following two grounds for relief (Doc.
1 at 3–4):
Whether Petitioner’s successful challenge to an illegal sentence
imposed pursuant to counsel’s misadvice during the critical plea
negotiation stage resulting in Petitioner’s sentence being reduced
from a life sentence to thirty years, should be considered: (a)
newly discovered evidence, (b) denial of his Sixth Amendment
right to counsel, and (c) therefore making his waiver of trial
involuntary and acceptance of his plea agreement unknowing,
involuntary, and not freely made?
...
The belated discovery that Petitioner’s sentence was illegal,
which the State conceded and the Court agreed that the life
sentence imposed according to the plea agreement, negotiated by
counsel, exceeded the statutory maximum of thirty years, in
which Petitioner was re-sentenced to thirty years.
(Doc. 1 at 3) (Ground One)
Whether [Judge Pomponio’s] refusal to find a factual basis for
the altered plea agreement at Petitioner’s resentencing was bias,
[and] therefore, Petitioner should have been allowed to
withdraw his original plea agreement and proceed to trial?
...
Judge Pomponio’s statements at Petitioner’s resentencing —
“[T]hat’s why I said I don’t need a factual basis. I know there is
a factual basis in this case, and it’s something that will stay with
me also[.]” — substantiates Petitioner’s claim that no factual
basis was stated, for the record, for Petitioner’s altered plea to be
accepted by the Court, at Petitioner’s resentencing, because of
Judge Pomponio’s personal feelings and bias.
(Doc. 1 at 4) (Ground Two)
The Respondent asserts that Funk’s second petition is an unauthorized second or
successive petition because Judge Honeywell adjudicated Funk’s first petition on the merits.
(Doc. 6 at 5) The Respondent further asserts that the amended judgment is not a new

4

judgment that Funk may challenge in the second petition because the trial judge entered the
amended judgment nunc pro tunc to the date when the original judgment entered. (Doc. 6 at
5–8) Funk replies that the amended judgment is a new judgment that he may challenge in a
second petition. (Doc. 8 at 1–3)
Because Judge Honeywell adjudicated Funk’s earlier petition on the merits by
dismissing the petition as time-barred, Section 2244(b) requires Funk to obtain permission
from the court of appeals before filing a second or successive petition challenging the same
judgment. 28 U.S.C. § 2244(b)(3)(A). Patterson v. Sec’y, Fla. Dep’t Corrs., 849 F.3d 1321, 1325
(11th Cir. 2017) (“When his first federal petition was dismissed as untimely, Patterson lost
his one chance to obtain federal habeas review of his 1998 judgment.”).
However, “‘where . . . there is a new judgment intervening between the two habeas
petitions, an application challenging the resulting new judgment is not second or
successive[.]’” Osbourne v. Sec’y, Fla. Dep’t Corrs., 968 F.3d 1261, 1264 (11th Cir. 2020) (quoting
Magwood v. Patterson, 561 U.S. 320, 341–42 (2010)). “[N]ot every action that alters a sentence
necessarily constitutes a new judgment for purposes of Section 2244.” Osbourne, 968 F.3d at
1265. “‘[T]he judgment that matters for purposes of Section 2244 is the judgment authorizing
the petitioner’s confinement.’” Osbourne, 968 F.3d at 1265 (quoting Patterson, 849 F.3d at
1325).
Osbourne, 968 F.3d at 1266–67, held that the petitioner’s amended judgment, imposed
nunc pro tunc to the date of the original judgment, related back to the original judgment and
therefore was not a “new judgment” under Section 2244. Osbourne, 968 F.3d at 1266 n.4,
refused to review whether the state court properly imposed the amended sentence, nunc pro
tunc to the date of the original judgment:

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We note Florida law also provides that “when the court wholly
omits an order or wishes to change it, the new order cannot be
entered nunc pro tunc.” Riha’s Estate, 369 So. 2d at 404. However,
Osbourne did not challenge the imposition of the amended
sentence nunc pro tunc in state court, despite having the
opportunity to do so. Further, he does not raise any challenge to
the nunc pro tunc designation now. Under these circumstances
and because the propriety of labeling a Florida judgment “nunc
pro tunc” is a matter of state law, we do not opine as to whether
the imposition of the amended sentence in his case was the
proper or correct use of a nunc pro tunc designation under Florida
law. That is a matter best left to the province of the state court.
See Coleman v. Thompson, 501 U.S. 722, 731 (1991) (“Because ‘it
would be unseemly in our dual system of government for a
federal . . . court to upset a state court conviction without an
opportunity to the state courts to correct [an alleged] violation,’
federal courts apply the doctrine of comity, which ‘teaches that
one court should defer action on causes properly within its
jurisdiction until the courts of another sovereignty with
concurrent powers, and already cognizant of the litigation, have
had an opportunity to pass upon the matter.’” (quoting Darr v.
Burford, 339 U.S. 200, 204 (1950)). Our decision here is limited
to the effect of the nunc pro tunc designation under Florida law
and what effect that designation has on whether the judgment is
a new judgment for purposes of Section 2244(b).
Cassidy v. Sec’y, Fla. Dep’t Corrs., 119 F.4th 1336, 1340–41 (11th Cir. 2024), reaffirmed
that a state court judge’s imposition of an amended judgment, nunc pro tunc to the date of the
original judgment, receives deference in federal court:
When a state court issues an amended judgment or sentence nunc
pro tunc, our precedent requires us to accept that designation and
refrain from evaluating whether it was proper under state law.
See Osbourne, 968 F.3d at 1266–67, 1266 n.4. In Osbourne, we held
that an amended sentence that a state court issued nunc pro tunc
did not constitute a new judgment because it related back to the
date of the original judgment. Id. at 1266–67. We did so without
evaluating the validity of the nunc pro tunc designation under
Florida law because that matter was “best left to the province of
the state court.” Id. at 1266 n.4.
Although Osbourne requires us to defer to a state court’s
designation of an amended judgment or sentence as nunc pro tunc,
id. at 1266–67, 1266 n.4, the state court must have, in fact,
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classified the order as nunc pro tunc for this deference to apply,
see id. at 1266 (explaining that the date of the original judgment
controlled “[i]n light of the trial court’s nunc pro tunc designation
when issuing Osbourne’s amended sentence” (emphasis added))
....
Because the trial judge imposed the amended judgment in Funk’s case nunc pro tunc to
the date of the original judgment (Docs. 2-1 at 65 and 7-2 at 428–29), the amended judgment
is not a new judgment that Funk may challenge in a second petition. Cassidy, 119 F.4th at
1341 (“We stated that ‘the determining factor as to whether the state court judgment is a new
judgment for purposes of Section 2244(b) turns on the nunc pro tunc designation.’ Because the
nunc pro tunc designation on Batson’s amended sentences came from the state court, we must
give it the dispositive weight that Osbourne did.”) (citation omitted and italics in original).
Even if the amended judgment is not a new judgment, the Court may still review
Funk’s claim if the claim did not ripen until after the denial of the earlier petition. Stewart v.
United States, 646 F.3d 856, 863 (11th Cir. 2011) (“‘[C]laims based on a factual predicate not
previously discoverable are successive,’ but ‘[i]f . . . the purported defect did not arise, or the
claim did not ripen, until after the conclusion of the previous petition, the later petition based
on that defect may be non-successive.’”) (italics in original) (quoting Leal Garcia v. Quarterman,
573 F.3d 214, 221, 222 (5th Cir. 2009)).
Ground One
Funk asserts that trial counsel deficiently performed by misadvising him that the
statutory maximum sentence for robbery was life in prison. (Doc. 1 at 3) He contends that,
because of trial counsel’s alleged misadvice, he unknowingly and involuntarily pleaded guilty
to robbery. (Doc. 1 at 3) He contends that he first discovered that the life sentence for robbery
was illegal when the post-conviction court granted relief. (Docs. 1 at 3 and 2 at 8–10) Even if

7

Funk first discovered that the life sentence for robbery was illegal when the post-conviction
court granted relief, the claim is successive. Stewart, 646 F.3d at 863 (“[C]laims based on a
factual predicate not previously discoverable are successive[.]”) (italics in original).
The claim did not ripen when Funk discovered that the life sentence for robbery was
illegal. The claim ripened when trial counsel deficiently performed, and Funk’s judgment and
sentence became final. Fla. R. Crim. P. 3.850(b). Before he filed his first petition, Funk could
have discovered that the indictment charged him with robbery with a weapon (Doc.
7-2 at 13), that Section 812.13(2)(b), Florida Statutes, defines robbery with a weapon as a
first-degree felony punishable by thirty years, and that trial counsel deficiently performed by
failing to advise him that the statutory maximum sentence for robbery with a weapon was
thirty years in prison. Consequently, the claim in Ground One does not “fall[ ] within . . . a
small subset of unavailable claims that must not be categorized as successive.” Stewart, 646
F.3d at 863. Holland v. Sec’y, Fla. Dep’t Corrs., 941 F.3d 1285, 1287 (11th Cir. 2019) (“Holland
has already filed two habeas petitions in federal court. The first of those petitions was denied
on the merits. That means any later petition — containing claims, like the ones here, that
could have been raised when Holland filed his initial Section 2254 petition — that Holland
filed is considered ‘successive’ and must meet the requirements set out in 28 U.S.C.
§ 2244(b).”).
Ground Two
Funk asserts that the trial judge violated his federal rights at the resentencing hearing
by failing to determine whether a factual basis supported the robbery conviction and by
demonstrating personal bias and prejudice. (Docs. 1 at 4 and 2 at 15–22) Because the
resentencing hearing occurred after Judge Honeywell dismissed Funk’s earlier petition, the

8

claim in Ground Two ripened after the dismissal of the petition. Consequently, the claim is
not successive. Stewart, 646 F.3d at 863 (“We are not faced with a claim based on facts that
were merely undiscoverable. Rather, Stewart has presented a claim, the basis for which did
not exist before the vacatur of his predicate state convictions — after his first Section 2255
motion had already been filed and dismissed.”).
However, even if the claim is not successive, the claim is procedurally barred. Funk
appealed the amended judgment (Doc. 7-2 at 432), but did not argue on appeal that the trial
judge violated his rights by failing to determine whether a factual basis supported the
conviction and by demonstrating personal bias and prejudice. (Doc. 7-2 at 442–56) Because
Funk did not fairly present the claim by invoking one complete round of the state’s established
appellate review process, Funk failed to exhaust his remedies in state court. 28 U.S.C.
§ 2254(b)(1)(A) (“An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears that —– the
applicant has exhausted the remedies available in the courts of the State.”). O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999) (“[W]e conclude that state prisoners must give the state
courts one full opportunity to resolve any constitutional issues by invoking one complete
round of the State’s established appellate review process.”).
If Funk returned to state court to exhaust his remedies, the post-conviction court would
dismiss the claim as procedurally defaulted. Fla. R. Crim. P. 3.850(c) (“This rule does not
authorize relief based on grounds that could have or should have been raised at trial and, if
properly preserved, on direct appeal of the judgment and sentence.”). Consequently, the claim
is procedurally defaulted in federal court. Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir.
1998) (“[W]hen it is obvious that the unexhausted claims would be procedurally barred in

9

state court due to a state-law procedural default, we can forego the needless ‘judicial pingpong’ and just treat those claims now barred by state law as no basis for federal habeas
relief.”).
Even if Funk could excuse the procedural default, the claim is meritless. The
indictment charged Funk with robbery with a weapon by alleging that he “rob[bed], st[ole],
and t[ook] away from [the adjuster] certain property, to wit: an ATM or bank card, the value
of said property being less than three hundred dollars . . . and in the course of said robbery,
[ ] carried a weapon, to wit: a motorcycle muffler and tailpipe.” (Doc. 7-2 at 13)
At the plea hearing, the prosecutor summarized evidence that demonstrated a factual
basis for the robbery conviction (Doc. 2-1 at 17–18, 23–25):
[Prosecutor:]

The circumstantial evidence will establish
beyond a reasonable doubt that [the
adjuster] was struck repeatedly about the
head with a blunt impact object. The
medical examiner, having viewed a muffler
pipe that was seized from within the home
during the execution of the search warrant,
has been able to determine based upon the
patterned injuries to the head that that was
in all likelihood probably the murder
weapon.
[The adjuster] died as a result of severe
blunt impact to her head. The medical
examiner has indicated that at least — and
these are his terms — three vicious blows
were struck to her head.
...
The evidence would also include the fact
that [the adjuster] owned a G.T.E. credit
card, G.T.E. Federal Credit Union credit
card, that that credit card was used at a
convenient store on the later afternoon

10

hours of that same Friday, the date of [the
adjuster’s] death.
That was used to purchase a variety of
items of groceries from that convenient
store, that the convenient store clerk,
although he was not able to identify the
defendant from a photopak, nonetheless
required — received from the person who
negotiated
that
transaction
an
identification card from a company with
the name Jason Funk on it and he wrote
down the name of the company World
Com., Inc., on the receipt for that
transaction and the name Jason Funk with
the — the number of that identification
card.
During the execution of the search
warrant, that same identification card was
found
in
the
master
bedroom
entertainment
center,
the
same
identification card used to negotiate the
purchase with the victim’s credit card only
a few hours after her disappearance.
The evidence would indicate that after a
prolonged interview with Mr. Funk on the
evening of Saturday the 13th of November,
and going into the early morning hours of
Sunday, November 15th, Mr. Funk, who
at the time had not been advised of any law
enforcement suspicion that a muffler pipe
was used, was placed into a — a room with
his girlfriend, Pamela Hence.
This is a monitored room from which the
officers, detectives were able to monitor
Mr. Funk and Ms. Hence both visually and
audibly and that at that time, they
overheard Mr. Funk indicating to Ms.
Hence, they think — I paraphrase — they
think I battered her about the head with a
bat or a motorcycle pipe or something
along those lines.

11

At that point, law enforcement had no such
suspicion of the use and they did direct
their attention and did recover the muffler
pipe that I alluded to earlier and took that
to the medical examiner’s office.
This summary of the evidence demonstrated a factual basis for the robbery conviction. See
§ 812.13(1), Fla. Stat. (“‘Robbery’ means the taking of money or other property which may
be the subject of larceny from the person or custody of another, with intent to either
permanently or temporarily deprive the person or the owner of the money or other property,
when in the course of the taking there is the use of force, violence, assault, or putting in fear.”).
The post-conviction court determined that the sentence for the robbery conviction
exceeded the statutory maximum, vacated the sentence, and granted a resentencing hearing.
(Doc. 7-2 at 345–47) Because the post-conviction court did not vacate the conviction, the trial
judge did not need to determine at the resentencing hearing that a factual basis supported
Funk’s plea.
Even so, at the resentencing hearing, the trial judge, who presided over the earlier plea
hearing, determined that a factual basis supported the plea (Doc. 7-2 at 423–24):
[Prosecutor:]

Yes, Your Honor. And I know that you
were the presiding judge. I was prepared to
do a factual basis for the new judge, but if
you’re — if you want to rely on your
memory, it’s completely up to you. I can go
over the facts again.

[Judge:]

I will never forget the facts of this case.

[Prosecutor:]

Okay. Yes, ma’am.

[Judge:]

I can probably recite them.

[Prosecutor:]

Okay.

[Judge:]

The factual basis as well as you could.

12

[Prosecutor:]

Yes, Your Honor.

[Judge:]

So, I’m going to find that there is a factual
basis. It was unfortunately, [ ] my
understanding that it was a [first-degree
felony punishable by a life sentence], and I
sentenced him to life in prison concurrent
to Count One. And the State conceding,
and I agree with the State conceding, that
on Count Three only is what we’re here
for.

[Trial counsel:]

Correct.

[Judge:]

That is [ ] — is there anything — first of all,
Mr. Funk, is there anything you would like
to say to the Court?

[Funk:]

Your Honor, it’s been seventeen years, the
last time I stood in your courtroom, and I’ll
never forget your reaction when you left
the courtroom because you left out the
courtroom in tears. And it was at that
moment I realized just a glimpse of the
iceberg of wreckage that I created from my
crime and there is nothing I can do to
change that, Your Honor. I’m just grateful
for the opportunity to be in front of your
courtroom again.

[Judge:]

Well, I didn’t know that you caught that.

[Funk:]

Oh, yes.

[Judge:]

But you were — you’re correct in your
assessment and that was my leaving the
courtroom was me holding it together as
long as I could, honestly, and that’s why I
said I don’t need a factual basis. I know
there is a factual basis in this case, and it’s
something that will stay with me also.

The record refutes Funk’s contention that the trial judge failed to determine that a factual
basis supported the plea.

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Also, Section 38.10, Florida Statutes, and Rule 2.330, Florida Rules of Judicial
Administration, govern the disqualification of a trial judge for bias and prejudice. Because
disqualification of a trial judge is based on state law and because a federal court may grant
relief on habeas “only on the ground that [the prisoner] is in custody in violation of the
Constitution or laws or treaties of the United States,” the claim is not cognizable on federal
habeas. 28 U.S.C. § 2254(a). Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) (“[A]
habeas petition grounded on issues of state law provides no basis for habeas relief. . . . This
limitation on federal habeas review is of equal force when a petition, which actually involves
state law issues, is ‘couched in terms of equal protection and due process.’”) (citations
omitted).
Also, Funk contends that the trial judge demonstrated personal bias and prejudice by
admitting at the resentencing hearing that she had cried at the first sentencing hearing. (Doc.
2 at 15) “‘The standard for viewing the legal sufficiency of a motion to disqualify is whether
the facts alleged, which must be assumed to be true, would cause the movant to have a
well-founded fear that he or she will not receive a fair trial at the hands of that judge.’” Wall
v. State, 238 So. 3d 127, 143 (Fla. 2018) (citation omitted). “‘[T]his fear of judicial bias must
be objectively reasonable.’” Wall, 238 So. 3d at 143 (citation omitted). “[T]he context of the
hearing and history of the case as reflected in the record are relevant to understanding whether
a movant has a well-founded fear of judicial bias.” Wall, 238 So. 3d at 143.
Funk contends that the trial judge’s refusal to determine whether a factual basis
supported the robbery conviction demonstrated the trial judge’s bias and prejudice against
him. (Docs. 1 at 4 and 2 at 15–17) However, as explained above, at both the plea hearing and
the resentencing hearing, the trial judge determined that a factual basis supported Funk’s plea.

14

Because the post-conviction court vacated Funk’s sentence and did not vacate the robbery
conviction, the trial judge did not need to determine at the resentencing hearing that a factual
basis supported the plea.
Funk contends that the trial judge’s refusal to permit Funk to withdraw his plea at the
resentencing hearing demonstrated the trial judge’s bias and prejudice against him. (Docs. 1
at 4 and 2 at 15–17) However, at the resentencing hearing, the prosecutor correctly advised
the trial judge that the appropriate remedy was to impose a sentence within the statutory
maximum sentence because the prosecutor did not consent to the withdrawal of the
negotiated plea. (Doc. 7-2 at 420–21) Sedell v. State, 224 So. 3d 885, 886–87 (Fla. 2d DCA
2017), explains:
Sedell had entered into a negotiated plea agreement and sought
relief from an illegal sentence via Rule 3.800(a) when the time to
file a motion under Rule 3.850 had expired. See 223 So. 3d at
381. . . . [A] defendant is entitled to relief on a Rule 3.800(a)
motion when an illegal sentence results from a negotiated plea.
See Armstrong, 145 So. 3d at 952; McDuffie, 946 So. 2d at 100;
Lang, 931 So. 2d at 922. In that situation, the postconviction
court should resentence the defendant within the statutory
maximum if the State agrees to the resentencing; if the State does
not agree, then the court must allow the defendant to withdraw
his plea. See Parks, 223 So. 3d at 382–83; Armstrong, 145 So. 3d
at 952; McDuffie, 946 So. 2d at 100; Lang, 931 So. 2d at 922.
The original judgment entered on March 23, 2005 (Doc. 7-2 at 21–32), Funk did not
appeal, and the time to appeal expired thirty days later — April 22, 2005. The time to file a
Rule 3.850 motion expired two years later — April 23, 2007. Fla. R. Crim. P. 3.850(b).
DePasquale v. State, 257 So. 3d 505, 506 (Fla. 4th DCA 2018) (“Because DePasquale did not
file a direct appeal, the judgment and sentence became final in December 2014, after the time
for filing a notice of appeal expired. DePasquale timely filed his Rule 3.850 motion less than
two years later, on November 1, 2016.”) (citations omitted). On March 29, 2021, Funk placed

15

the Rule 3.800(a) motion in the hands of prison officials for mailing. (Doc. 7-2 at 287–98)
Consequently, when Funk filed the Rule 3.800(a) motion challenging the sentence for
robbery, the time to file a Rule 3.850 motion had expired.
At the end of the resentencing hearing, after the trial judge pronounced the amended
sentence, Funk told the trial judge that he wanted to renegotiate the plea agreement with the
prosecutor (Doc. 7-2 at 425):
[Funk:]

Your Honor, if I may?

[Judge:]

Yes, sir.

[Funk:]

It’s very difficult as a defendant to accept
that sentence because what you’re giving
me totally disturbs the agreement of the
plea. I should be entitled to have the
opportunity to negotiate a new plea.

[Trial counsel:]

And on behalf of Mr. Funk, I did attempt
to negotiate a different plea as to both —
well, candidly, Count Three with the State,
I think [there] was no movement as to
talking about Count One or Count Three.

[Prosecutor:]

That is correct, Judge. We negotiated for a
life sentence and that is what we intend to
always pursue.

[Judge:]

Okay. All right. Your comments are noted,
sir.

[Funk:]

Thank you, Your Honor.

Because the trial judge could not permit Funk to withdraw his plea, without the prosecutor’s
consent, the record refutes Funk’s contention that the trial judge refused to permit him to
withdraw his plea. Sedell, 224 So. 3d at 886–87.
Lastly, the resentencing hearing occurred seventeen years after the sentencing hearing
when the trial judge cried. At the resentencing hearing, Funk submitted documents that

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demonstrated that he had participated in programs while in prison and requested that the trial
judge impose a sentence of twenty-five years in prison, instead of the statutory maximum
sentence of thirty years. (Doc. 7-2 at 421–22) However, trial counsel acknowledged that Funk
would continue to serve his concurrent mandatory life sentence for the murder conviction.
(Doc. 7-2 at 422) Because of the significant lapse of time between the sentencing hearing and
the resentencing hearing and the undisturbed mandatory life sentence, Funk failed to allege
facts that demonstrated that he had a well-founded and objectively reasonable fear that he
would not receive a fair sentencing before the trial judge. Wall, 238 So. 3d at 143. Also,
because of the aggravating circumstances of Funk’s crimes, Funk could not demonstrate that
any alleged error substantially and injuriously affected his sentence. Brecht v. Abrahamson, 507
U.S. 619, 637 (1993).
Accordingly, the Court GRANTS in part and DENIES in part the Respondent’s
motion to dismiss the petition as an unauthorized second or successive petition. (Doc. 8)
Ground One is DISMISSED for lack of jurisdiction. Ground Two is DENIED as meritless.
For Ground Two, a certificate of appealability and leave to appeal in forma pauperis are
DENIED. Because the Court lacks jurisdiction to review Ground One, the Court cannot issue
a certificate of appealability for that ground. Williams v. Chatman, 510 F.3d 1290, 1295 (11th
Cir. 2007). The Clerk is DIRECTED to enter a judgment against Funk only on Ground Two
and to CLOSE this case.
DONE AND ORDERED in Tampa, Florida on March 7, 2025.

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