Johnson v. State

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED. IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT DERRICK JOHNSON, Appellant, v. STATE OF FLORIDA, Appellee. ) ) ) ) ) ) ) ) ) ) CASE NO. 2D01-3338 Opinion filed November 21, 2001. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Jack Espinosa, Jr., Judge. GREEN, Judge. Derrick Johnson appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied Johnson's motion as untimely and successive. We affirm the trial court's order but write because the trial court did not address the timeliness issue in light of Wood v. State, 750 So. 2d 592 (Fla. 1999), even though Johnson relied on it in his motion and filed his motion within the Wood window. The supreme court in Wood noted that although the court was creating a twoyear window in which to file claims traditionally cognizable under error coram nobis, "coram nobis claims cannot breath [sic] life into postconviction claims that have previously been held barred." Wood, 750 So. 2d at 595. The very allegations Johnson now makes were raised in a prior rule 3.850 motion, which was denied as untimely. Under these circumstances, Johnson cannot use coram nobis to breathe life into these claims. Affirmed. ALTENBERND, A.C.J., and NORTHCUTT, J., Concur. -2-

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