Kelly v. State

Full title: TEDDY WARREN KELLY, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, First District

Date published: Sep 29, 1982

419 So. 2d 1161 (Fla. Dist. Ct. App. 1982)

Opinion

No. AK-415.

September 29, 1982.

Appeal from the Circuit Court, Escambia County, Ernest E. Mason, J.

Barry W. Beroset of Murphy, Beroset, Parks Oberhausen, Pensacola, for appellant.

Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.

MILLS, Judge.

Kelly appeals the denial of his motion for post-conviction relief. We affirm.

The commission of the intended felony is not a lesser included offense of burglary. Estevez v. State, 313 So.2d 692 (Fla. 1975).

State v. Sarmiento, 397 So.2d 643 (Fla. 1981), and Hoberman v. State, 400 So.2d 758 (Fla. 1981), issues are not retroactively available in 3.850 proceedings. Williams v. State, 406 So.2d 1246 (Fla. 1st DCA 1981), review pending.

The evidence produced below does not reveal that discovery violations, if any, prejudiced Kelly.

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.