DENNIS RICHARD COOKISH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Cookish appealed the denial of his post-conviction Rule 3.850 motion alleging coerced plea. The trial court twice denied the motion without an evidentiary hearing and without properly supplementing the record, leading the appellate court to reverse and remand for compliance with procedural requirements.
No. The trial court failed to comply with Rule 3.850 requirements by denying the motion without an evidentiary hearing, failing to properly supplement the record, and impermissibly delegating its responsibility to the Clerk or Assistant Attorney General to supply the plea dialogue.
[1] A trial court must grant an evidentiary hearing or append a portion of the record that conclusively shows a prisoner is entitled to no relief when denying a motion for po…
[2] A trial court's order denying a motion for post-conviction relief without an evidentiary hearing or appending the record is reversible error.
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Join FLexlaw to unlock all legal intelligence“the rule's requirements are clear; they demand no less than diligent and full compliance.”
Establishes that Rule 3.850 requires strict adherence despite the burden on trial courts
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Join FLexlaw to unlock all legal intelligenceAppellant filed a motion for post-conviction relief claiming his plea was coerced. The trial court first denied the motion without an evidentiary hear…
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PER CURIAM.
Appellant filed a motion for post-conviction relief pursuant to Rule 3.850, Fla.R. Crim.P., and alleged that his plea had been coerced. The trial court denied the motion without an evidentiary hearing and without appending a portion of the record to justify its action. This court, in turn, relinquished jurisdiction and instructed the trial court “to grant an evidentiary hearing or, in the alternative, to supplement the record on appeal by filing a portion of the record which conclusively shows that the prisoner is entitled to no relief.” See Rule 3.850, Fla.R.Crim.P. Thereafter, the trial court entered a second order which again denied appellant’s motion without an evidentiary hearing and without appending a portion of the record. In deference to the trial court, it appears that the court was under the impression that the record of the plea conference was lodged in this court because of an earlier appeal. In fact, however, the record had been returned to the clerk of the circuit court long before the entry of the trial court’s second order. Additionally, in its second order, the trial court suggested “that the Clerk, or the Assistant Attorney General supply the [appellate] court with a copy of the plea dialogue... . ” With due respect to the trial court, the foregoing fails to satisfy the requirements of this court’s order and constitutes an impermissible delegation of the trial court’s responsibility. Thus, we are compelled to reverse.
We recognize that compliance with Rule 3.850 can, at times, be an onerous task for the trial court. Indeed, we acknowledged this point in Jones v. State, 384 So. 2d 736 (Fla. 4th DCA 1980), where we said:
The committee note reflects the effect of the rule in creating additional work for the already heavily burdened trial bench. Despite this, we believe observance of the committee’s recommendations is advisable and would have the effect of shortening the inevitable appellate proceedings in the long run.
Id., at 738; see also LeDuc v. State, 415 So. 2d 721 (Fla.1982). Nonetheless, the rule’s requirements are clear; they demand no less than diligent and full compliance.
Since the order on appeal fails to comport with the requirements of Rule 3.850, Fla.R. Crim.P., we are compelled to reverse and mandate the trial court to comply strictly with our order of May 14, 1982. A petition for rehearing will not be entertained.
REVERSED and REMANDED.
LETTS, C.J., and HERSEY and HURLEY, JJ., concur.
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Dawson Eugene Havis v. State, 506 So. 2d 3 (Fla. 1st DCA 1987)…2d 726 (Fla. 1st DCA 1978); Williams v. State, 440 So. 2d 512 (Fla. 4th DCA 1983). Neither action was taken below. Accordingly, we reverse and remand with directions to the trial court that it follow the requirements of Rule 3.850. Cookish v. State, 416 So. 2d 53 (Fla. 4th DCA 1982). Reversed and remanded with directions. BOOTH, C.J., and THOMPSON, J., concur.…
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Lamar v. State, 443 So. 2d 414 (Fla. 4th DCA 1984)…y, if the court considered the robbery conviction for the purpose of enhancing appellant’s sentence, a change might be appropriate. Both of appellant’s contentions are questions on which the trial court should make a finding, see Cookish v. State, 416 So. 2d 53 (Fla. 4th DCA 1982); Meintzer v. State, 399 So. 2d 133 (Fla. 5th DCA 1981). Where such improprieties are alleged, the trial court, in addition, should attach the portions of the record demonstrating that appellant is not entitled to relief, if it su…
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Rudolph v. State, 508 So. 2d 363 (Fla. 1st DCA 1987)…ions of the case file and record which refute the appellant’s allegations, or (2) conduct an evidentiary hearing and, then, either grant or deny the relief sought by the appellant. Payne v. State, 362 So. 2d 688 (Fla. 2d DCA 1978); Cookish v. State, 416 So. 2d 53 (Fla. 4th DCA 1982). Reversed and remanded with directions. BOOTH, C.J., and THOMPSON, J., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- LeDUC v. State, 415 So. 2d 721 (Fla. 1982)
- Jones v. State, 384 So. 2d 736 (Fla. 4th DCA 1980)