Whitaker v. State

902 So. 2d 223, 2005 Fla. App. LEXIS 6892, 2005 WL 1115962

Opinion

On The Court’s Own Motion

We sua sponte withdraw our pre-man-date opinion in this case and substitute the following.

PER CURIAM.

The summary denial of the appellant’s postconviction motion is reversed and the cause remanded to the trial court to permit the appellant a reasonable opportunity to demonstrate his claim is timely under Dickey v. State, 30 Fla. L. Weekly D443, — So.2d -, 2005 WL 350313 (Fla. 1st DCA Feb.15, 2005), by alleging the date his present conviction was enhanced by the challenged conviction. Cf. Nelson v. State, 875 So.2d 579 (Fla.2004). If no amendment is filed within the time allowed, then the denial can be with prejudice. Id.; Spooner v. State, 889 So.2d 900, 901 (Fla. 1st DCA 2004).

REVERSED AND REMANDED.

KAHN, BENTON and LEWIS, JJ., concur.