Duganv.State

District Court of Appeal of Florida, First DistrictMay 16, 2005
902 So. 2d 237 (Fla. Dist. Ct. App. 2005)

No. 1D01-1705.

May 16, 2005.

An appeal from the Circuit Court for Duval County. Michael R. Weatherby, Judge.

Appellant, pro se.

Charlie Crist, Attorney General, Tallahassee, for Appellee.


On The Court's Own Motion


We sua sponte withdraw our pre-mandate opinion in this case and substitute the following.

The summary denial of the appellant's postconviction motion is reversed and the cause remanded to the trial court to permit the appellant a reasonable opportunity to demonstrate his claim is timely under Dickey v. State, 30 Fla. L. Weekly D443, ___ So.2d ___, 2005 WL 350313 (Fla. 1st DCA Feb. 15, 2005), by alleging the date his present conviction was enhanced by the challenged conviction. Cf. Nelson v. State, 875 So.2d 579 (Fla. 2004). If no amendment is filed within the time allowed, then the denial can be with prejudice. Id.; Spooner v. State, 889 So.2d 900, 901 (Fla. 1st DCA 2004).

REVERSED AND REMANDED.

KAHN, WEBSTER, and HAWKES, JJ., concur.