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111 So. 3d 190

Johnson v. State

District Court of Appeal of Florida

Decided February 5, 2013

District Court of Appeal of Florida · decided 2013-02-05

Relies on Spera v. State · Tidwell v. State · State v. Conde

Decided 2013-02-05

PER CURIAM.

¶1The lower court denied appellant’s timely motion* for post-conviction relief raising eight grounds, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm Issue I without comment, denying grounds 2, 5, 7, and 8. We reverse and remand Issues II and III for further proceedings. The state has conceded error.

¶2As to Issue II, the lower court erred as a matter of law by concluding that the portions of the record attached to the final *191order conclusively established that defendant was not entitled to relief on ground 4 below. See Pennington v. State, 84 So.3d 151 (Fla. 1st DCA 2010); Williams v. State, 924 So.2d 897 (Fla. 1st DCA 2006); Tidwell v. State, 844 So.2d 701 (Fla. 1st DCA 2008).

¶3As to Issue III, the lower court abused its discretion by failing to address defendant’s amended 3.850 motion, which defendant had filed within the two-year time limit. See Spera v. State, 971 So.2d 754, 759 (Fla.2007); Sinclair v. State, 959 So.2d 1277 (Fla. 1st DCA 2007).

¶4Appellant did not appeal the lower court’s denial of grounds 1, 3, and 6.

¶5AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

PADOVANO, MARSTILLER, and SWANSON, JJ„ concur.
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