05-1960 JOHNSON V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 05-1960 JOHNSON V. STATE

Case Date: 12/28/2005

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2005

JOHNNY JOHNSON, Appellant, vs. THE STATE OF FLORIDA, Appellee.

** ** ** ** ** LOWER TRIBUNAL CASE NO. F01-6503 CASE NO. 3D05-1960

Opinion filed December 28, 2005. An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Alan R. Schwartz, Acting Circuit Court Judge. Johnny Johnson, in proper person. Charles J. Crist, Jr., Attorney General, for appellee.

Before FLETCHER, WELLS, and SHEPHERD, JJ.

PER CURIAM. This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). 1 On appeal

1

The petition is improperly filed as a Fla. R. Crim. P. 3.850 petition, when it raises claims properly brought via a rule 3.800 petition and we treat it as such.

from

a

summary

denial,

this

court

must

reverse

unless

the

postconviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. Fla. R. App. P. 9.141(b)(2)(D). See

Neither the trial court nor the

state addressed the merits of the petitioner's facially valid claim that he does not qualify as a violent career criminal pursuant to chapter 775.084(3)(b)1, as contained on page 13 of his petition for Rule 3.800 relief dated June 2, 2005. Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief. Reversed and remanded for further proceedings.

2

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