RAYMOND LOPEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the motion for post conviction relief was timely filed and the trial court erred by summarily denying it without attaching necessary documentation to support the claim that it was successive.
Raymond Lopez filed a motion for post conviction relief. The trial court summarily denied the motion as untimely and successive. Lopez appealed this d…
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PER CURIAM.
Raymond Lopez appeals from a summary denial of his motion for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse, finding that the motion was timely filed and the trial court failed to attach the necessary documents to its order in support of-'its determination that the motion for post conviction relief was successive.
The trial court based its summary denial on the grounds that the motion was untimely and successive. Lopez’s judgment and sentence became final on March 14, 2003. The motion was filed on December 27, 2004. Thus, the motion was not untimely filed.
As to the successive nature of the motion, the trial court failed to attach the previous motion for post conviction relief or order to its order in which it summarily denied the motion. Pursuant to Florida Rule of Criminal Procedure 3.850(d), a summary denial is permitted only if the motion filed and records in the case conclusively show the movant is entitled to no relief. We thus remand this cause to the trial court so that it can attach the necessary documents to its summary denial order to establish that the motion is successive, or to take other appropriate action on the merits. See Callwood v. State, 931 So. 2d 281 (Fla. 5th DCA 2006).
Reversed and remanded.
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Romeo v. State, 965 So. 2d 197 (Fla. 3d DCA 2007)…, when there is a denial on the basis that the same issue has previously been disposed of on the merits, the correct procedure is to attach the previous motion and denial so it is made part of the postconviction record on appeal. See Lopez v. State, 946 So. 2d 46 (Fla. 3d DCA 2006). The trial court did not do so in this case. The defendant’s main claim on this appeal is that he does not actually qualify as a VCC. He asserts that the predicate offenses relied on by the trial court in adjudicating him a VCC a…
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Lopez v. State, 987 So. 2d 750 (Fla. 3d DCA 2008)…ssistance of counsel alleged in the motion resulted in an involuntary plea. The trial court denied the motion as successive and untimely. On appeal, this Court held that the trial court incorrectly ruled that the motion was untimely. Lopez v. State, 946 So. 2d 46 (Fla. 3d DCA 2006). The case was remanded with directions to either establish that the motion was successive “or to take other appropriate action on the merits.” Lopez, 946 So. 2d at 47. On remand, the trial court found that Lopez could have raised…
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Benjamin v. State, 20 So. 3d 945 (Fla. 3d DCA 2009)…the same issue has previously been disposed of on the merits, the correct procedure is to attach the previous motion and denial so it is made part of the post-conviction record on appeal. Here, the trial court did not do so. See also Lopez v. State, 946 So. 2d 46 (Fla. 3d DCA 2006).…
Authorities Cited
- Shorn K. Callwood v. State, 931 So. 2d 281 (Fla. 5th DCA 2006)