Lopez v. State

946 So. 2d 46 (2006)

Raymond LOPEZ, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D05-2936.

District Court of Appeal of Florida, Third District.

December 13, 2006.

Raymond Lopez, in proper person.

Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Miami, for appellee.

Before RAMIREZ, WELLS, and LAGOA, JJ.

PER CURIAM.

Raymond Lopez appeals from a summary denial of his motion for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse, finding that the motion was timely filed and the trial court failed to attach the necessary documents to its order in support of its determination that the motion for post conviction relief was successive.

The trial court based its summary denial on the grounds that the motion was untimely and successive. Lopez's judgment and sentence became final on March 14, 2003. The motion was filed on December 27, 2004. Thus, the motion was not untimely filed.

As to the successive nature of the motion, the trial court failed to attach the previous motion for post conviction relief or order to its order in which it summarily denied the motion. Pursuant to Florida Rule of Criminal Procedure 3.850(d), a summary denial is permitted only if the motion filed and records in the case conclusively show the movant is entitled to no relief. We thus remand this cause to the trial court so that it can attach the necessary documents to its summary denial order to establish that the motion is successive, or to take other appropriate action on the merits. See Callwood v. State, 931 So. 2d 281 (Fla. 5th DCA 2006).

Reversed and remanded.