EVERETT W. RICE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in summarily denying the motion without an evidentiary hearing or attaching relevant record portions.
[1] A defendant's allegation that a sentence violated a plea bargain, rendering the plea involuntary, is facially sufficient to warrant relief under Rule 3.850, Florida Rules…
[2] A trial court must either attach record portions conclusively showing a defendant is entitled to no relief or grant an evidentiary hearing when a Rule 3.850 motion is fac…
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Join FLexlaw to unlock all legal intelligenceAppellant filed a pro se motion alleging his guilty plea was involuntary due to a broken plea bargain. The trial court denied the motion without an ev…
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ORFINGER, Judge.
Appellant’s pro se motion under Rule 3.850, Florida Rules of Criminal Procedure, alleges that his plea of guilty in the trial court was involuntarily given. He alleges the plea resulted from a bargain with the State that in return for his plea, he would receive a sentence of thirty to sixty days in prison. Instead, he alleges, he was sentenced to fifteen years, and was not permitted to withdraw his plea.
The trial court summarily denied the motion without an evidentiary hearing and without attaching to the order those portions of the record which conclusively show that petitioner is entitled to no relief.
Rule 3.850, Fla.R.Crim.P. The allegation that the sentence violated the plea bargain and was thus so involuntary as to require the court to permit petitioner to withdraw his plea is facially sufficient. Brown v. State, 245 So. 2d 41 (Fla.1971); Davy v. State, 356 So. 2d 18 (Fla. 4th DCA 1978).
Since the record before us does not conclusively show that appellant is entitled to no relief, we are compelled 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). 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 relief under Rule 3.850. We have been furnished with a copy of the motion and of the order denying the reduction of sentence. A review of the motion clearly indicates that it only requested mitigation and was not based on any claim of illegality. As such, it was addressed to the court’s discretion and should not serve to estop petitioner from filing a motion under Rule 3.850.
REVERSED and REMANDED for further proceedings consistent herewith.
COBB and FRANK D. UPCHURCH, Jr., JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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DeSANTIS v. State, 400 So. 2d 525 (Fla. 5th DCA 1981)…t portion of the files and records which conclusively show that the prisoner is entitled to no relief shall be attached to the order.” Rule 3.850, Fla.R. Crim.P. 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…
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Howard v. State, 417 So. 2d 1152 (Fla. 1st DCA 1982)…the assistant public defender, who was standing-in at sentencing for Howard’s absent counsel, rendered ineffective assistance in failing to object to the allegedly improper sentence. We find these allegations legally sufficient. See, Rice v. State, 400 So. 2d 461 (Fla. 5th DCA 1980); Knight v. State, 394 So. 2d 997 (Fla.1981). Accordingly, the lower court was required to attach those portions of the files and records which conclusively show that Howard is entitled to no relief, or to hold an evidentiary he…
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Benton v. State, 401 So. 2d 1114 (Fla. 5th DCA 1981)…led to no relief, we relinquish jurisdiction for 30 days and remand for an evidentiary hearing or if appropriate, for the attachment of those portions of the record which show appellant is entitled to no relief. Fla.R.App.P. 9.140(g); Rice v. State, 400 So. 2d 461 (Fla. 5th DCA 1980); Gunter v. State, 380 So. 2d 1198 (Fla. 5th DCA 1980). REVERSED and REMANDED for further proceedings. ORFINGER and COBB, JJ., concur. Appeal after remand, Fla.App., 401 So. 2d 1114.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 245 So. 2d 41 (Fla. 1971)
- Payne v. State, 362 So. 2d 688 (Fla. 2d DCA 1978)
- Gunter v. State, 380 So. 2d 1198 (Fla. 5th DCA 1980)
- Brown v. State, 380 So. 2d 1198 (Fla. 2d DCA 1980)
- Davy v. State, 356 So. 2d 18 (Fla. 4th DCA 1978)