BRADFORD B. BANKS, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2012-08-17
No. 5D12-1632
TORPY and JACOBUS, JJ., concur.
114 So. 3d 1010 Florida District Court of Appeal, Fifth District (2012) Positive Treatment
Cited by 3 cases
Topics
Timeliness Of Motion Habitual Offender Sentencing Motion For Postconviction Relief Postconviction Relief

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Opinion of the Court
PALMER, J.

PALMER, J.

Bradford B. Banks, Jr. (defendant) appeals the trial court’s summary denial of *1011his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse in part and affirm in part.

As to ground 1 of the defendant’s motion, the trial court erred in concluding that the motion was untimely, because the motion was timely filed within two years of this court’s affirmance of the defendant’s sentence. See Banks v. State, 968 So.2d 576 (Fla. 5th DCA 2007). Accordingly, we reverse and remand for consideration of the merits of ground 1.

As to ground 2, we find no error in the trial court’s ruling.

As to ground 8, we reverse because the defendant should have been given an opportunity, pursuant to Spera v. State, 971 So.2d 754 (Fla.2007), to amend his claim regarding his habitual offender status.

AFFIRMED in part, REVERSED in part, and REMANDED.

TORPY and JACOBUS, JJ., concur.

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Citator

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  • Gonzalez v. State, 123 So. 3d 691 (Fla. 4th DCA 2013)
    …manufacture1 of a controlled sub [*692] stance and the trafficking of that controlled substance in the same quantity and under the same conduct violate double jeopardy. See Latos v. State, 39 So. 3d 511, 513-14 (Fla. 4th DCA 2010); Fonseca v. State, 114 So. 3d 1010 (Fla. 5th DCA 2012); Odom v. State, 104 So. 3d 1238, 1239 (Fla. 5th DCA 2012). In the present case, as in Latos, the trafficking conduct was the same conduct constituting the lesser offense, rendering the defendant’s conviction under both counts vio…
  • Palmer v. State, 180 So. 3d 1096 (Fla. 1st DCA 2015)
    …king conviction is possession.* AFFIRMED. [*1099] BILBREY, J., concurs. THOMAS, J., concurs in result only. * We acknowledge other appellate decisions holding differently. See Odom v. State, 104 So. 3d 1238 (Fla. 5th DCA 2012); Fonseca v. State, 114 So. 3d 1010 (Fla. 5th DCA 2012). However, those decisions do not indicate whether the trafficking charges were based on manufacturing or some other proscribed conduct. -Therefore, we do not consider our deci [*1099] sion in this case to be in conflict with the…
  • Perez-Riva v. State, 152 So. 3d 98 (Fla. 2d DCA 2014)
    …require. On appeal, the State concedes error. We agree. See, e.g., Odom v. State, 104 So. 3d 1238 (Fla. 5th DCA 2012) (holding dual convictions of attempted manufacture of methamphetamine and trafficking violated double jeopardy); Fonseca v. State, 114 So. 3d 1010 (Fla. 5th DCA 2012) (holding convictions for both manufacturing and trafficking same drugs violated double jeopardy); Stacey v. State, 83 So. 3d 749 (Fla. 5th DCA 2011) (holding convictions for manufacture of methamphetamine and possession of metham…

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