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Viera v. State

Florida Court of Appeal, Third District

February 22, 2012

Nelson VIERA, Appellant,
v.
The STATE of Florida, Appellee.

Nelson Viera, in proper person.

Pamela Jo Bondi, Attorney General, for appellee.

Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.

SUAREZ, J.

Nelson Viera seeks appeal from a September 20, 2011, order that failed to address the issues set forth in an underlying post-conviction petition filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.

The September 20, 2011, order on appeal denied relief based on a sentencing issue previously raised and determined on appeal.[1] That issue was not raised in the Rule 3.850 petition that was filed by the defendant and docketed on July 7, 2011. In fact, the defendant in his July 7, 2011, petition acknowledges that the sentencing issue was resolved. The order on appeal, however, does not address the seven issues raised in the Rule 3.850 petition filed below.[2]

Because the order on appeal does not address the facially sufficient issues raised in the defendant's petition filed pursuant to Rule 3.850, and because the record now before us fails to make the required showing that the defendant is not entitled to the relief he seeks, we reverse the order and remand for consideration of the July 7, 2011, petition on the merits of the issues raised, either by an evidentiary hearing or other appropriate relief. If the trial court enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any

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relief. See Fla. R.App. P. 9.141(b)(2)(A), (D).

Reversed and remanded for further ...


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