PRESTON JOHNSON, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Florida appellate court affirmed the denial of post-conviction relief where the defendant's direct appeal was pending at the time of filing, and the record supported the three-year minimum mandatory sentence for armed burglary with a firearm.
A motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 must be denied when the defendant's direct appeal is pending at the time of filing.
[1] A motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 is properly denied when filed while the defendant's direct appeal is pending.
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligencePreston Johnson, Jr. pleaded nolo contendere to armed burglary and received a three-year minimum mandatory sentence. A witness (a criminal defense att…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Factual Basis For Sentence cases and more on FLexlaw
PER CURIAM.
Preston Johnson, Jr., appeals an order summarily denying his motion for post-eonviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court correctly denied the motion because Mr. Johnson’s direct appeal was pending when he filed the motion and when the trial court entered its order. Libby v. State, 520 So. 2d 322 (Fla. 2d DCA 1988). The judgment and sentence, entered on a plea of nolo contendere, were recently affirmed on direct appeal, and the record on appeal is still on file with this court. In the interest of judicial economy, we have reviewed that record in assessing the merits of Mr. Johnson’s motion.
In his postconviction motion, Mr. Johnson primarily complains that the state could not prove that he used a firearm during the armed burglary and, thus, the three-year minimum mandatory sentence is illegal. The factual basis described at the plea hearing reflects that a witness, who happens to be a criminal defense attorney, would testify that he struggled with Mr. Johnson for several minutes and that Mr. Johnson had a gun. Police officers en route to the crime scene heard five shots and later removed a bullet from a door near the location of the struggle. Accordingly, the factual basis for the sentence is contained in the record, and the minimum mandatory sentence is not illegal.
Affirmed.
RYDER, A.C.J., and PATTERSON and ALTENBERND, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Jones v. State, 787 So. 2d 35 (Fla. 2d DCA 2001)…ones’s appeal in this court, and it references cases holding that a trial court lacks jurisdiction to consider a defendant’s postconviction attack on his conviction while his direct appeal proceeds in the district court. See, e.g., Johnson v. State, 657 So. 2d 11 (Fla. 2d DCA 1995). However, when Jones filed the motion at issue here the direct appeal of his conviction and sentence had in fact been completed and the mandate had issued. See Jones v. State, 743 So. 2d 517 [*36] (Fla. 2d DCA 1999) (per curiam af…
-
Meintzer v. State, 943 So. 2d 966 (Fla. 5th DCA 2006)…ate, 930 So. 2d 863 (Fla. 2d DCA 2006); Carter v. State, 929 So. 2d 1161 (Fla. 5th DCA 2006) (where defendant received belated appeal of sentence, trial court lacked jurisdiction to rule on 3.850motion attacking the same sentence); Johnson v. State, 657 So. 2d 11 (Fla. 2d DCA 1995) (trial court lacks jurisdiction to consider the merits of a Rule 3.850 motion while the direct appeal of the defendant’s judgment and sentence is pending). Because Meintzer is attacking the same judgment in the pending appeal and…
-
Cross v. State, 930 So. 2d 863 (Fla. 2d DCA 2006)…DCA 1999). On the other hand, we have recognized that trial courts lack jurisdiction to consider the merits of a defendant’s rule 3.850 motion while the direct appeal of the defendant’s judgment and sentence is pending. See, e.g., Johnson v. State, 657 So. 2d 11 (Fla. 2d DCA 1995). Cross’s appeal did not pertain to his original judgments or sentences but to new sentences imposed as a result of a successful postconviction motion. Because this case involves an appeal from sentences imposed following a postc…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Libby v. State, 520 So. 2d 322 (Fla. 2d DCA 1988)