Viera v. State

117 So. 3d 1124, 2012 Fla. App. LEXIS 2565, 2012 WL 555410

Opinion

SUAREZ, J.

Nelson Viera seeks appeal from a September 20, 2011, order that failed to address the issues set forth in an underlying post-conviction petition filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.

The September 20, 2011, order on appeal denied relief based on a sentencing issue previously raised and determined on appeal.¹ That issue was not raised in the Rule 3.850 petition that was filed by the defendant and docketed on July 7, 2011. In fact, the defendant in his July 7, 2011, petition acknowledges that the sentencing issue was resolved. The order on appeal, however, does not address the seven issues raised in the Rule 3.850 petition filed below.²

Because the order on appeal does not address the facially sufficient issues raised in the defendant’s petition filed pursuant to Rule 3.850, and because the record now before us fails to make the required showing that the defendant is not entitled to the relief he seeks, we reverse the order and remand for consideration of the July 7, 2011, petition on the merits of the issues raised, either by an evidentiary hearing or other appropriate relief. If the trial court enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief. See Fla. R.App. P. 9.141(b)(2)(A), (D).

Reversed and remanded for further proceedings.

1 . See Viera v. State, 35 So.3d 1005 (Fla. 3d DCA 2010) (remanding for resentencing).

2 . The docket indicates that a "motion to vacate judgment and sentence” was filed on August 31, 2010. That motion was continued several times and was apparently carried through the calendar until September 20, 2011, well past October 4, 2010, the date the sentence actually was corrected by resentenc-ing pursuant to this Court's mandate. After a thorough study of the record and docket below, we can only conclude that the trial court ruled on the then-moot August 31, 2010, petition. There is no order in the record responding to the July 7, 2011, petition.