HERACIO JOHNSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Heracio Johnson appealed the trial court's summary denial of his postconviction relief motion under Florida Rule of Criminal Procedure 3.850. The appellate court affirmed denial of one ground but reversed and remanded two others, finding the record insufficient to conclusively refute Johnson's claims regarding jail time credit and ineffective assistance of counsel regarding his plea.
The court affirmed the denial of Ground 2 but reversed and remanded Grounds 1 and 3 because the postconviction record was insufficient to conclusively refute Johnson's claims and lacked the necessary colloquy from the September 3, 2006 plea hearing.
[1] A prior denial of a motion under Florida Rule of Criminal Procedure 3.800(a) does not bar a subsequent motion under Florida Rule of Criminal Procedure 3.850 if the prior…
[2] A postconviction court must remand for further consideration when the record does not conclusively refute a defendant's claim for jail time credit.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“As the State concedes, that ruling is not a bar to the current motion.”
Establishes that a prior rule 3.800(a) denial does not bar a subsequent rule 3.850 motion on the same issue
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJohnson was placed on community control, which was revoked on September 3, 2006. He was sentenced on that date following a plea to an affidavit of vio…
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This is an appeal of an order summarily denying the motion of Heracio Johnson for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.
In the underlying case, the defendant was placed on community control, which was revoked on September 3, 2006. In 2008, defendant-appellant Johnson timely filed this rule 3.850 motion.
In Ground 1, the defendant states that he is entitled to an additional 268 days of credit for jail time served in this case prior to the September 3, 2006 sentencing hearing. The defendant argues that his counsel was ineffective for failing to obtain a proper award of credit for time served.
The trial court denied the motion, reasoning that the claim had been made previously in a motion based on Florida Rule of Criminal Procedure 3.800(a), which had been denied on April 1, 2008. As the State concedes, that ruling is not a bar to the current motion. While it is true that the rule 3.800(a) motion alleged the same claim for credit for jail time previously served, the State response to the rule 3.800(a) motion misinterpreted the claim as being a claim for time served after sentencing. Based on the State response, the trial court’s April 2008 order was a denial with*442out prejudice to the defendant to seek postconviction credit from the Department of Corrections. The request for credit for jail time served prior to the revocation of community control was never ruled on. Because the postconviction record now before us does not conclusively refute the defendant’s claim, we remand for further consideration. See Fla. R.App. P. 9.141(b)(2)(D).*
We also reverse for further proceedings on defendant’s Ground 3, ■ in which the defendant claims ineffective assistance of counsel in connection with his plea to the affidavit of violation of community control. The defendant maintains that counsel advised him if he pled, he would receive a forty-two-month sentence and instead, he received a greater sentence. The postcon-vietion record now before us does not contain the colloquy from the September 3, 2006 plea. We therefore remand for further proceedings on Ground 3. We affirm the trial court’s denial of relief on Ground 2.
Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.