Duenas v. State , 636 So. 2d 549 ( 1994 )

636 So. 2d 549 (1994)

Roy Felix DUENAS, Appellant,
v.
STATE of Florida, Appellee.

No. 94-00428.

District Court of Appeal of Florida, Second District.

May 6, 1994.

PER CURIAM.

Roy Felix Duenas appeals the summary denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Appellant claims that two of his prior convictions were obtained under a statute which has been declared unconstitutional. The basis of the trial court's denial of the motion was that the appellant was not eligible for postconviction relief because he was no longer in custody on the charges. However, the convictions which appellant attacks were used to enhance the sentence he is currently serving. Thus, appellant is in custody for purposes of rule 3.850. Shell v. State, 501 So. 2d 1332 (Fla. 2d DCA 1987).

Nevertheless, we affirm the denial of appellant's motion because the appellant previously raised the same issue in a prior motion for postconviction relief which the trial court considered and denied because the appellant was not convicted under the unconstitutional provisions of the statute. That decision was affirmed by this court. Duenas v. State, 605 So. 2d 77 (Fla. 2d DCA 1992).

Affirmed.

RYDER, A.C.J., and PARKER and FULMER, JJ., concur.