STEVE GUNTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred by failing to either hold an evidentiary hearing or specifically state the reasons for denying the motion for collateral relief.
Appellant, proceeding pro se, filed a motion for collateral relief seeking to vacate his robbery conviction based on ineffective assistance of counsel…
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DAUKSCH, Chief Judge.
This case began by the Appellant, without an attorney, filing a motion under Rule 3.850, Florida Rules of Criminal Procedure, seeking collateral relief from the judgment. He sought to have his conviction of robbery vacated and a new trial because he says he was denied effective assistance of counsel.
It is the duty of trial courts in these cases to follow the dictates of Rule 3.850, Florida Rules of Criminal Procedure, and either hold an evidentiary hearing to determine if relief should be granted or if the case file and record conclusively show the petitioner is entitled to no relief, then to deny relief in an order specifically setting out the reasons for the denial and attaching the appropriate case file and record. Neither was done in this case. Because Appellant is now represented by counsel, upon remand, an amended petition may be filed if counsel deems advisable, even though we find Appellant’s pro se petition to be legally sufficient.
The order denying Appellant’s motion under Rule 3.850, Florida Rules of Criminal Procedure, is reversed and this cause is remanded for further proceedings consistent herewith. Payne v. State, 362 So. 2d 688 (Fla. 2d DCA 1978).
REVERSED AND REMANDED.
UPCHURCH and SHARP, JJ., concur.
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DeSANTIS v. State, 400 So. 2d 525 (Fla. 5th DCA 1981)…. Benton v. State, 401 So. 2d 1114 (Fla. 5th DCA, 1981) [1981 F.L.W. 765]; Rice v. State, 400 So. 2d 461 (Fla. 5th DCA, 1980); Brown v. State, 390 So. 2d 447 (Fla. 5th DCA 1980); Battle v. State, 388 So. 2d 1323 (Fla. 5th DCA 1980); Gunter v. State, 380 So. 2d 1198 (Fla. 5th DCA 1980); Gunn v. State, 378 So. 2d 105 (Fla. 5th DCA 1980). The motion of appellant is sufficient on its face and seeks to correct what appellant says is an illegal sentence under Villery v. Florida Parole and Probation Commission, 396…
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Stephens v. State, 399 So. 2d 1106 (Fla. 5th DCA 1981)…nstructions within sixty (60) days to (a) Attach that portion of the case file and record which refutes appellant’s allegations or (b) conduct an eviden-tiary hearing on appellant’s allegation that the guilty plea was not voluntary. Gunter v. State, 380 So. 2d 1198 (Fla. 5th DCA 1980); Lesley v. State, 370 So. 2d 85 (Fla. 2d DCA 1979); Payne v. State, 362 So. 2d 688 (Fla. 2d DCA 1978). REVERSED AND REMANDED. ORFINGER and COWART, JJ., concur.…
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Rice v. State, 400 So. 2d 461 (Fla. 5th DCA 1980)…ompelled to reverse the order and remand the cause so that the trial judge may either attach to the order those portions of the record which conclusively show that appellant is entitled to no relief, or grant an evidentiary hearing. Gunter v. State, 380 So. 2d 1198 (Fla. 5th DCA 1980); Payne v. State, 362 So. 2d 688 (Fla. 2d DCA 1978). [*462] The State says petitioner’s prior attempt to gain a reduction in sentence under Rule 3.800, Florida Rules of Criminal Procedure, should preclude him from now seeking reli…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Payne v. State, 362 So. 2d 688 (Fla. 2d DCA 1978)