Spencer v. State

805 So. 2d 1089, 2002 Fla. App. LEXIS 979, 2002 WL 126328

Opinion

PER CURIAM.

In his post-conviction motion, Appellant alleges that he was improperly convicted of two counts of resisting an officer without violence arising from a single incident. The trial court summarily denied Appellant’s motion, finding that this claim was procedurally barred because it could have been raised on direct appeal. A defendant’s conviction of two identical counts violates double jeopardy and can be raised for the first time in a post-conviction motion. See Smith v. State, 741 So.2d 576, 577 (Fla. 1st DCA 1999). The record does not clearly refute Appellant’s claim. Therefore, we reverse the order denying the rule 3.850 motion and remand for the trial court to conduct an evidentiary hearing, to attach records conclusively refuting this claim, or to vacate one of Appellant’s convictions for resisting an officer without violence.

REVERSED and REMANDED.

BOOTH, BENTON and BROWNING, JJ., concur.