Opinion
No. 3D05-1960.
December 28, 2005.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Alan R. Schwartz, Acting Circuit Court Judge.
Johnny Johnson, in proper person.
Charles J. Crist, Jr., Attorney General, for appellee.
Before FLETCHER, WELLS, and SHEPHERD, JJ.
This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla.R.App.P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla.R.App.P. 9.141(b)(2)(D). Neither the trial court nor the state addressed the merits of the petitioner's facially valid claim that he does not qualify as a violent career criminal pursuant to chapter 775.084(3)(b)1, as contained on page 13 of his petition for Rule 3.800 relief dated June 2, 2005.
The petition is improperly filed as a Fla.R.Crim.P. 3.850 petition, when it raises claims properly brought via a rule 3.800 petition and we treat it as such.
Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief.
Reversed and remanded for further proceedings.