Varnes v. State

510 So. 2d 1238, 12 Fla. L. Weekly 2005, 1987 Fla. App. LEXIS 9890

Opinion

PER CURIAM.

John Varnes appeals from the summary denial of his motion for postconviction relief.

The trial court denied Varnes’s motion, which was received June 4,1987, because it was filed more than two years after the judgment and sentence became final and did not allege any of the exceptions to the two year period of limitations provided by Florida Rule of Criminal Procedure 3.850. With one exception we affirm this ruling. In a previous proceeding Varnes argued that the trial court improperly retained jurisdiction over one-third of a life sentence pursuant to section 947.16(4), Florida Statutes (1985). We remanded with directions to correct the sentence if the facts were as Varnes had alleged. Varnes v. State, 489 So.2d 893 (Fla. 2d DCA 1986). Varnes now claims that the trial court has not corrected the sentence. Accordingly, we remand for further consideration of this one issue. The trial court should either strike the retention provision or attach to its order any evidence from the files and records which would demonstrate that the sentence already has been corrected or that Varnes otherwise is not entitled to relief.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

SCHEB, A.C.J., and SCHOONOVER and THREADGILL, JJ., concur.