Miller 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 VICTOR MILLER, ) ) Appellant, ) ) v. ) ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________ ) Case No. 2D12-6339 Opinion filed November 27, 2013. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Lee County; Bruce Kyle, Judge. Victor Miller, pro se. WALLACE, Judge. We affirm the postconviction court's denial of Victor Miller's motion filed under Florida Rule of Criminal Procedure 3.800(a) because Mr. Miller did not demonstrate where in the record it can be shown that he is entitled to relief. See Johnson v. State, 60 So. 3d 1045, 1051 n.2 (Fla. 2011). However, our affirmance is without prejudice for Mr. Miller to file a facially sufficient motion. Although we affirm the denial of Mr. Miller's motion, we note that constructive possession of a firearm cannot support the imposition of a minimum mandatory sentence enhancement under sections 775.087(1)-(2), Florida Statutes (2000). See Irons v. State, 851 So. 2d 798, 798 (Fla. 2d DCA 2003). Affirmed without prejudice. SILBERMAN and MORRIS, JJ., Concur. -2-

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