LESTER JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1978-09-15
No. 78-1140
HOBSON, Acting C. J., and OTT, J., concur.
362 So. 2d 465 Florida District Court of Appeal, Second District (1978) Positive Treatment
Cited by 6 cases
Topics
Gideon V. Wainwright Sentence Enhancement Evidentiary Hearing

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Opinion of the Court
DANAHY, Judge.

DANAHY, Judge.

Appellant filed a motion to vacate his sentence under Fla.R.Crim.P. 3.850. In that motion he alleged that a prior conviction was invalid under Gideon v. Wainwright 1 and that the trial court had used the prior conviction to enhance his sentence in this case.

The trial court denied appellant’s motion without an evidentiary hearing. We reverse. If the allegations contained in the motion are true,2 appellant is entitled to be resentenced without reference to the prior conviction. Wolfe v. State, 323 So. 2d 680 (Fla.2d DCA 1975). Accordingly, we remand the case so that the trial court may hold an evidentiary hearing to test the truth of appellant’s allegations.

HOBSON, Acting C. J., and OTT, J., concur. . 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

. We have reviewed the transcript of the sentencing hearing, and we can find nothing which refutes appellant’s allegations. In fact, we note that the court made a specific reference to appellant’s prior conviction.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Washington v. State, 442 So. 2d 382 (Fla. 2d DCA 1983)
    …ngular point in his motion alleges that he received an illegal enhanced sentence because the trial court used several prior uncounseled convictions. If this allegation is true, appellant would be entitled to post-conviction relief. Johnson v. State, 362 So. 2d 465 (Fla. 2d DCA 1978). The trial court, however, failed to conduct an eviden-tiary hearing or to attach portions of the record which conclusively refute appellant’s allegation. Accordingly, we reverse the trial court’s denial of appellant’s motion an…
  • Lofton v. State, 442 So. 2d 1091 (Fla. 2d DCA 1983)
    …ate, 408 So. 2d 675 (Fla. 4th DCA 1981); Tillman v. State, 203 So. 2d 46 (Fla. 2d DCA 1967). Also, the allegation in paragraph 2 that an uncounseled conviction was used to enhance his sentence, if true, would entitle him to relief. Johnson v. State, 362 So. 2d 465 (Fla. 2d DCA 1978). The trial court, however, failed to either conduct an eviden-tiary hearing or attach portions of the record which refute those allegations. Accordingly, we reverse in part the trial court’s denial of appellant’s motion and rema…
  • Mann v. Dugger, 817 F.2d 1471 (11th Cir. 1987)
    …enhanced his sentence in reliance on a prior conviction obtained in violation of his right to counsel. Washington v. State, 442 So. 2d 382, 382 (Fla.Dist.Ct.App.1983); Lofton v. State, 442 So. 2d 1091, 1092 (Fla.Dist.Ct.App.1983); Johnson v. State, 362 So. 2d 465, 465 (Fla.Dist.Ct.App.1978); Garcia v. State, 358 So. 2d 561, 561 (Fla.Dist. Ct.App.1978); Lloyd v. State, 346 So. 2d 1075, 1076 (Fla.Dist.Ct.App.1977); Glenn v. State, 338 So. 2d 263, 263 (Fla.Dist.Ct.App.1976); Hicks v. State, 336 So. 2d 1244, 124…

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