Faria v. State, No. 95-1603

• Decision Date: 05 October 1995
• Docket Number: No. 95-1603
• Citation: 660 So.2d 1184
• Parties: 20 Fla. L. Weekly D2250 Richard FARIA, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1184

660 So.2d 1184

20 Fla. L. Weekly D2250

Richard FARIA, Appellant, v. The STATE of Florida, Appellee.

No. 95-1603.

District Court of Appeal of Florida, Third District.

Oct. 5, 1995.

An Appeal under Fla.R.App.P. 9.140(g) from the Circuit Court for Dade County; Arthur Maginnis, Judge.

Richard Faria, in pro. per.

Robert A. Butterworth, Attorney General, for appellee.

Before BARKDULL, BASKIN and GODERICH, JJ.

PER CURIAM.

Defendant seeks review of a denial of post-conviction relief alleging several grounds for relief, among which is the contention that the trial court erred in sentencing the defendant to two separate three-year minimum mandatory terms. We find this point to be well taken and hereby strike the second three-year minimum mandatory sentence as to the robbery with a knife. State v. Rodriguez, 602 So.2d 1270 (Fla.1992); Stripling v. State, 602 So.2d 663 (Fla. 3d DCA 1992); Belcher v. State, 550 So.2d 1185 (Fla. 5th DCA 1989); Peck v. State, 425 So.2d 664 (Fla. 2d DCA 1983). As this issue was not raised in the prior motion, and the fundamental nature of this sentencing error is sufficient to require relief, we hold that such issue is not barred as successive. See Dowdell v. State, 500 So.2d 594 (Fla. 1st DCA 1986). We find no merit in the other contentions raised, as the exact issues were raised in a prior motion and are thereby successive. Christopher v. State, 489 So.2d 22 (Fla.1986); Smith v. State, 453 So.2d 388 (Fla.1984); Elkins v. State, 555 So.2d 441 (Fla. 3d DCA 1990). Accordingly, the judgment and sentence are otherwise affirmed.