Summary
relying upon Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2003), supplemented on reh'g, 884 So.2d 950 (Fla. 4th DCA 2004)
Summary of this case from Nesbitt v. StateOpinion
Case No. 4D04-1077.
Opinion filed May 12, 2004.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Cheryl J. Aleman, Judge, L.T. Case No. 96-1129 CF10A.
Michael A. Puskac, Arcadia, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
Michael Puskac appeals the summary denial of his motion for postconviction relief, which raised two claims. We affirm as to the first issue without comment.
In the second claim of error, Puskac argues his habitual felony offender sentence is illegal since the predicate convictions used to habitualize him were not sequential. Based on this court's holding in Richardson v. State, 28 Fla. L. Weekly D1716 (Fla. 4th DCA July 23, 2003), supplemented on reh'g, 29 Fla. L. Weekly D215 (Fla. 4th DCA Jan. 14, 2004) we agree. While this issue was raised and rejected in a prior motion for postconviction relief, denying the instant claim, in light of the recent holding in Richardson, would result in manifest injustice. See State v. McBride, 848 So.2d 287, 291 (Fla. 2003).
As such, we reverse the summary denial as to this issue alone and remand As we did in Richardson, the State may introduce evidence of other qualifying convictions which would allow for a habitual felony offender sentence, should any exist. Additionally, we again certify conflict with McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003), and subsequent cases from the Second District Court of Appeal.
FARMER, C.J., WARNER and TAYLOR, JJ., concur.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.