SMITH v. STATE (1999)

The defendant appeals a final order summarily denying his postconviction motion under rule 3.850 of the Florida Rules of Criminal Procedure.   Three grounds were asserted in the motion:  (1) the defendant's convictions for counts one and two violate double jeopardy because the two counts are identical, (2) the trial court incorrectly instructed the jury on a point of law, and (3) the trial court failed to provide information requested by the jury.   The trial court determined that all of these claims were procedurally barred because each of them could have been presented on direct appeal.

 We must reverse the trial court's disposition of the first claim, because a violation of the prohibition against double jeopardy is a fundamental error, see State v. Johnson, 483 So.2d 420 (Fla.1986), which can be presented for the first time in a postconviction motion.   See Willie v. State, 600 So.2d 479 (Fla. 1st DCA 1992).   Counts one and two of the information appear to be identical, and no portion of the record is attached to the trial court's order to show that they are based on different incidents.   Consequently, as to the defendant's first claim we reverse for an evidentiary hearing or the attachment of records conclusively showing that the defendant is not entitled to relief.   We find no error as to the summary denial of the defendant's second and third claims.

Affirmed in part and reversed in part.

PER CURIAM.

BARFIELD, C.J., MINER and PADOVANO, JJ., CONCUR.