JOSEPH CHARLES SPADARO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in summarily denying the defendant's double jeopardy claim, and that the Carawan decision is retroactively applicable.
[1] A claim of involuntary plea may be adequately refuted by the record and transcript.
[2] A defendant's allegation of sentencing in violation of double jeopardy prohibitions is a valid ground for postconviction relief.
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Join FLexlaw to unlock all legal intelligenceThe defendant appealed the summary denial of his postconviction relief motion. The trial court had denied his claim of involuntary plea and double jeo…
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CAMPBELL, Chief Judge.
Joseph Charles Spadaro timely appeals the summary denial of his postconviction relief motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We previously reviewed the circuit court’s summary denial of Spadaro’s motion and affirmed in part and reversed in part. Spadaro v. State, 528 So. 2d 1346 (Fla. 2d DCA 1988). On remand, the court again summarily denied the motion and provided attachments from the record in support of a portion of the ruling. We again affirm in part and reverse in part.
We agree with the trial court that Spada-ro’s claim of an involuntary plea is adequately refuted by the record and transcript. That portion of the order is affirmed.
However, we reverse the denial of Spadaro’s allegation that he was sentenced in violation of double jeopardy prohibitions for trafficking in cocaine and possession of cocaine. Carawan v. State, 515 So. 2d 161 (Fla.1987). Subsequent to the circuit court’s determination to the contrary, this court held that Carawan is retroactively applicable to convictions which were obtained prior to the opinion’s rendition. Glenn v. State, 537 So. 2d 611 (Fla. 2d DCA 1988); Gonzalez-Osorio v. State, 535 So. 2d 644 (Fla. 2d DCA 1988). Contra Harris v. State, 520 So. 2d 639 (Fla. 1st DCA), review denied, 536 So. 2d 244 (Fla.1988) (reaching a contrary holding).
Accordingly, we find that the trial court erred in summarily denying Spada-ro’s double jeopardy contention. We reverse this part of the summary denial with directions that the trial judge examine the files and records in this case to determine whether they conclusively refute Spadaro’s double jeopardy argument. If so, the court should attach such documentation to its order. Otherwise, an evidentiary hearing may be necessary to resolve the question. If the record actually supports Spadaro’s argument, the court should vacate the judgment and sentence for possession of cocaine. Any party aggrieved by the subsequent action of the trial court must file a notice of appeal within thirty days to obtain further appellate review.
SCHEB and RYDER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Smith, 547 So. 2d 613 (Fla. 1989)…thus furnishes grounds for postconviction relief. There have already been numerous, and will no doubt be many more, petitions for postconviction relief grounded on Cara-wan. See Merckle v. State, 541 So. 2d 1312 (Fla. 2d DCA 1989); Spadaro v. State, 539 So. 2d 1169 (Fla. 2d DCA 1989); Etlinger v. State, 538 So. 2d 1354 (Fla. 2d DCA 1989); Glenn v. State, 537 So. 2d 611 (Fla. 2d DCA 1988); Pastor v. State, 536 So. 2d 356 (Fla. 3d DCA 1988); Gonzalez-Osorio v. State, 535 So. 2d 644 (Fla. 2d DCA 1988); and Hender…
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Benny L. Hill v. State, 549 So. 2d 1166 (Fla. 4th DCA 1989)…PER CURIAM. The state concedes that appellant’s convictions for both sale and delivery of cocaine and trafficking in cocaine violated double jeopardy prohibitions. In light of Spadaro v. State, 539 So. 2d 1169 (Fla.2d DCA), jurisdiction accepted, 547 So. 2d 1211 (Fla.1989) and Garrison v. State, 530 So. 2d 365 (Fla.5th DCA 1988) (for double jeopardy purposes, sale and delivery is a lesser included offense of trafficking), we vacate appellant’s sale and de…
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State v. Finney, 550 So. 2d 1141 (Fla. 3d DCA 1989)…Fla.1987), and its progeny, not chapter 88-131, section 7, Laws of Florida, control. State v. Smith, 547 So. 2d 613 (Fla.1989). . Accord Merckle v. State, 541 So. 2d 1312 (Fla. 2d DCA), review granted, 545 So. 2d 1369 (Fla. 1989); Spadaro v. State, 539 So. 2d 1169 (Fla. 2d DCA 1989); State v. Etlinger, 538 So. 2d 1354 (Fla. 2d DCA 1988); Jensen v. State, 538 So. 2d 540 (Fla. 2d DCA), review granted, No. 73,828 (Fla. June 5, 1989); Glenn v. State, 537 So. 2d 611 (Fla. 2d DCA 1988), review granted, No. 73,496 (…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Harris v. State, 520 So. 2d 639 (Fla. 1st DCA 1988)
- Glenn v. State, 537 So. 2d 611 (Fla. 2d DCA 1988)
- Libardo J. Gonzalez-Osorio v. State, 535 So. 2d 644 (Fla. 2d DCA 1988)
- Spadaro v. State, 528 So. 2d 1346 (Fla. 2d DCA 1988)