LEWIS DOWDA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The trial court erred in summarily dismissing appellant's pro se Rule 3.850 motion without an evidentiary hearing or attaching court records showing either that appellant had counsel or that he received proper jail-time credit.
A trial court must either conduct an evidentiary hearing on a Rule 3.850 motion or attach court records conclusively showing the movant has counsel or received proper jail-time credit.
[1] A trial court must provide an evidentiary hearing on a Rule 3.850 motion unless the files and records conclusively show entitlement to no relief, and such conclusive reco…
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Join FLexlaw to unlock all legal intelligenceAppellant Dowda filed a pro se Rule 3.850 motion while represented by counsel. The trial court declared the motion a nullity without an evidentiary he…
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COWART, Judge.
The trial court declared appellant’s pro se 3.850 motion a nullity, stating that appellant cannot file a pleading when represented by counsel and citing Sheppard v. State, 391 So. 2d 346 (Fla. 5th DCA 1980). The trouble is that the rule requires that such motions be given an evidentiary hearing unless the files and records conclusively show entitlement to no relief and, when so, that such files and records be attached to the order. There is nothing attached to the appealed order showing that appellant has counsel appointed or retained to file and prosecute his 3.850 motion. Appellant’s motion appears to raise the troublesome issue as to whether he received the proper amount of credit for jail time served before sentencing. See Meintzer v. State, 399 So. 2d 133 (Fla. 5th DCA 1981). Accordingly we reverse and remand this cause for the trial court to either (1) enter another order attaching portions of court files and records showing either (a) that appellant has counsel to file and present his 3.850 motion or (b) that he received proper credit for all jail time served before sentencing, or (2) conduct an evidentiary hearing to determine one or both of those questions of fact.
REVERSED AND REMANDED.
ORFINGER, C. J., and SHARP, J., concur.
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Citator
Cited By
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Martin v. State, 525 So. 2d 901 (Fla. 5th DCA 1987)…remedies and all restrictions and limitations on such rule remedies can be, and should be, disregarded as unnecessary and surplus-age. . Harrison v. Wainwright, 408 So. 2d 800 (Fla. 5th DCA), rev. denied, 419 So. 2d 1201 (Fla.1982); Dowda v. State, 417 So. 2d 1147 (Fla. 5th DCA 1982); Jablonskis v. State, 422 So. 2d 356 (Fla. 5th DCA 1982); Waite v. State, 423 So. 2d 529 (Fla. 5th DCA 1982); Delgado v. State, 423 So. 2d 603 (Fla. 3d DCA 1982); Lamar v. State, 443 So. 2d 414 (Fla. 4th DCA 1984); Hampton v. Sta…
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Murray v. State, 1 So. 3d 407 (Fla. 2d DCA 2009)…tion court must attach specific record support to the order of dismissal showing that Murray was represented by counsel either appointed or retained for the specific purpose of representing him on his rule 3.853 motion. See generally Dowda v. State, 417 So. 2d 1147, 1147 (Fla. 5th DCA 1982) (holding that a circuit court was required to attach record evidence specifically showing that counsel was “appointed or retained to file and prosecute” a rule 3.850 motion before treating it as a nullity). Furthermore, ev…
Authorities Cited
- Verdell Hill, Jr. v. State, 391 So. 2d 346 (Fla. 5th DCA 1980)
- Meintzer v. State, 399 So. 2d 133 (Fla. 5th DCA 1981)