Turner v. State
Annotate this Case
Download PDF
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JOHNNY JAMES TURNER,
)
)
Appellant,
)
)
v.
)
)
STATE OF FLORIDA,
)
)
Appellee.
)
)
________________________________ )
Case No. 2D03-2271
Opinion filed December 20, 2006.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Polk County; Judith J. Flanders, Judge.
ON REMAND FROM THE SUPREME COURT OF FLORIDA
PER CURIAM.
This case is before the court on remand from the Supreme Court of
Florida, which vacated this court's opinion and remanded for reconsideration. See
Turner v. State, 31 Fla. L. Weekly S667 (Fla. Oct. 12, 2006).
Johnny Turner appeals the summary denial of his motion for
postconviction relief filed in 2003 pursuant to Florida Rule of Criminal Procedure 3.850.
For the reasons expressed below, we affirm.
Turner was convicted after a jury trial of both sale of cocaine and
possession of cocaine with the intent to sell or deliver. These convictions were affirmed
on direct appeal and became final upon the issuance of this court's mandate on
November 4, 1992. See Turner v. State, 606 So. 2d 1178 (Fla. 2d DCA 1992) (table
decision).
Turner asserts that, pursuant to case law decided after his convictions
became final, he is entitled to claim that fundamental error occurred when the jury was
not given an instruction requiring Turner to have had knowledge that the substance sold
or possessed was cocaine. The Florida Supreme Court in Chicone v. State, 684 So. 2d
736 (Fla. 1996), mandated for the first time that such an instruction be given for sale or
possession cases in addition to the standard jury instructions for such offenses.
This court can find no opinion of the Florida Supreme Court applying
Chicone retroactively on collateral review to convictions which became final before the
issuance of the mandate for the Chicone opinion on December 10, 1996. In Reed v.
State, 837 So. 2d 366, 370 (Fla. 2002), the supreme court held that the Reed opinion,
which identified as fundamental error an erroneous standard jury instruction for
aggravated child abuse, was not to be applied retroactively to convictions which had
already become final.
-2-
Assuming that Chicone could be retroactively applied, Turner had to file a
Chicone claim by December 10, 1998. See Bolender v. State, 658 So. 2d 82, 85 (Fla.
1995). Therefore, his motion filed January 23, 2003, was untimely.
Affirmed.
STRINGER,1 DAVIS, and VILLANTI, JJ., Concur.
1
Judge Stringer has been substituted for Judge Covington, who was on the
original Turner panel.
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
