Puskac v. State

872 So. 2d 1008, 2004 WL 1057833

• Court: District Court of Appeal of Florida
• Decided: May 12, 2004
• Docket: 4D04-1077
• Status: Published

Opinion

872 So.2d 1008 (2004)

Michael A. PUSKAC, Appellant,
v.
STATE of Florida, Appellee.

No. 4D04-1077.

District Court of Appeal of Florida, Fourth District.

May 12, 2004.

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.

PER CURIAM.

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, ___ So.2d ___, 2003 WL 21697171 (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.