MILTON A. VAN BEVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Van Bever appealed the trial court's summary denial of his motion to set aside his guilty plea and sentence without an evidentiary hearing or record attachment. The appellate court held that when a motion alleges prima facie grounds for relief, the trial court must either attach conclusive record evidence refuting those allegations or conduct an evidentiary hearing.
Van Bever stated two prima facie grounds for relief: (1) involuntariness of the plea due to his attorney's claimed lack of readiness, and (2) that he was sentenced on a nolle prossed count, which would be void and subject to collateral attack. When a motion is facially sufficient, the trial court must attach conclusive record evidence refuting it or grant an evidentiary hearing.
[1] A trial court must either attach the relevant portion of the record or conduct an evidentiary hearing when a motion to set aside a plea and sentence is facially sufficien…
[2] A sentence imposed on a count that has been nolle prossed is void and subject to collateral attack.
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Join FLexlaw to unlock all legal intelligence“when the motion is facially sufficient, the trial court must either attach that portion of the case file or record which conclusively shows that the prisoner is not entitled to relief, or must grant an evidentiary hearing.”
Establishes the standard for reviewing summary denials of Rule 3.850 motions and the trial court's obligations when faced with facially sufficient motions.
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Join FLexlaw to unlock all legal intelligenceVan Bever filed a motion to set aside his plea and sentence under Florida Rule of Criminal Procedure 3.850. The trial court denied the motion without …
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COBB, Judge.
Without conducting an evidentiary hearing, and without attaching any portion of the case file or record, the court below denied Van Bever’s motion1 to set aside his plea and sentence. The issue in this case is whether Van Bever alleged a prima facie ground for relief.
Because no portion of the record was attached to its order of denial, the trial court impliedly found the motion legally insufficient on its face,2 for when the motion is facially sufficient, the .trial court must either attach that portion of the case file or record which conclusively shows that the prisoner is not entitled to relief, or must grant an evidentiary hearing. Meeks v. State, 382 So. 2d 673 (Fla. 1980); Gunn v. State, 378 So. 2d 105 (Fla. 5th DCA 1980); Payne v. State, 362 So. 2d 688 (Fla. 2d DCA 1978).
Though his motion lacks the artfulness of an attorney’s hand, Van Bever alleges two prima facie grounds for relief from the plea and sentence. “Ground Two” alleges that at the time of the plea, Van Bever’s counsel informed him that he was not “completely ready” for trial, the implication being that Van Bever involuntarily pleaded guilty out of fear that his attorney would be unprepared at a trial.
The trial court could have adequately rebutted this allegation of involuntariness by attaching a portion of the record that indicated Van Bever was satisfied with the work of his attorney. “Ground Three” establishes a second prima facie basis for relief: according to Van Bever, and the record before this court does not indicate otherwise, he was sentenced on a count that was nolle prossed by the state. Such sentence would be void and subject to collateral attack, even though not raised on appeal. Van Bever’s two remaining allegations do not establish prima facie grounds for relief.
This cause is remanded to the court below so that it may either (1) attach that portion of the case file and record which conclusively refutes Van Bever’s prima facie allegations; or (b) conduct an evidentiary hearing and, then, either grant or deny the requested relief.
REMANDED WITH INSTRUCTIONS.
DAUKSCH, C. J., and SHARP, J., concur. . The motion was made pursuant to Florida Rule of Criminal Procedure 3.850.
. Additionally, it should be noted that in any order which summarily denies relief, the trial court should set forth the basis of its ruling with sufficient specificity to facilitate appellate review. See Committee Note, Fla.R.Cr.P. 3.850. By failing to set forth the basis for its denial, the trial court departed from the spirit of the rule and hindered appellate review. This deficiency is not unique to the present case. See, e.g., Collins v. State, 382 So. 2d 418 (Fla. 5th DCA 1980). Compare Brown v. State, 404 So. 2d 157 (Fla. 5th DCA 1981) [Affirmed trial court’s denial of relief where grounds were explicitly enumerated].
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (49 total)
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Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982)…ions. In so doing, the lower court has hampered our ability to review this case and departed from the spirit of Florida Rule of Criminal Procedure 3.850, noted in the accompanying “Committee Note” authored by the rule’s drafters. Van Bever v. State, 405 So. 2d 474, 475 n. 2 (Fla.5th DCA 1981). Because no portion of the record was attached to its order of denial, the trial court impliedly found the motion legally insufficient on its face, for when the motion is facially sufficient, the trial court must either…
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Halpin v. State, 428 So. 2d 703 (Fla. 2d DCA 1983)…show that appellant is not entitled to relief or hold an evidentiary hearing and then rule on the ground alleged in point one of the motion. See Fla.R.Crim.P. 3.850. See also Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982), and Van Bever v. State, 405 So. 2d 474 (Fla. 5th DCA 1981). To obtain further review any aggrieved party must appeal the new ruling of the trial court. AFFIRMED in part, REVERSED in part, and REMANDED. OTT, Acting C.J., and BOARDMAN and CAMPBELL, JJ., concur.…
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Offord v. State, 427 So. 2d 1080 (Fla. 2d DCA 1983)…earing and then rule on the allegation raised in appellant’s motion. See Fla.R.Crim.P. 3.850. See also Halpin v. State, 428 So. 2d 703 No. 83-35 (Fla. 2d DCA, Feb. 16, 1983); Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982); and Van Bever v. State, 405 So. 2d 474 (Fla. 5th DCA 1981). To obtain further review in this cause, either aggrieved party must appeal the new ruling of the trial court. REVERSED and REMANDED. OTT, C.J., and BOARDMAN and RYDER, JJ., concur.…
Previewing 3 of 49 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Meeks v. State, 382 So. 2d 673 (Fla. 1980)
- Payne v. State, 362 So. 2d 688 (Fla. 2d DCA 1978)
- Gunn v. State, 378 So. 2d 105 (Fla. 5th DCA 1980)
- Brown v. State, 404 So. 2d 157 (Fla. 5th DCA 1981)
- Collins v. State, 382 So. 2d 418 (Fla. 5th DCA 1980)