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362 So. 2d 465

Docket No. 78-1140.

Johnson v. State

Lester JOHNSON, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided September 15, 1978.

District Court of Appeal of Florida · decided 1978-09-15

Cited by 4 later decisions — most recently May 1987

2 state decisions

Relies on Gideon v. Wainwright · Whittington v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1978-09-15

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¶1DANAHY, Judge.

¶2Appellant filed a motion to vacate his sentence under Fla.R.Crim.P. 3.850. In that motion he alleged that a prior conviction was invalid under Gideon v. Wainwright[1] and that the trial court had used the prior conviction to enhance his sentence in this case.

¶3The trial court denied appellant's motion without an evidentiary hearing. We reverse. If the allegations contained in the motion are true,[2] appellant is entitled to be resentenced without reference to the prior conviction. Wolfe v. State,323 So.2d 680 (Fla.2d DCA 1975). Accordingly, we remand the case so that the trial court may hold an evidentiary hearing to test the truth of appellant's allegations.

¶4HOBSON, Acting C.J., and OTT, J., concur.

NOTES

¶5[1] 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

¶6[2] We have reviewed the transcript of the sentencing hearing, and we can find nothing which refutes appellant's allegations. In fact, we note that the court made a specific reference to appellant's prior conviction.

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