DANNY HAINES MCCORKLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Appellant appeals the denial of his motion for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The motion contained allegations which, if true, constitute grounds for relief under the rule. In denying the motion, the trial judge relied on an affidavit submitted by the attorney who had represented appellant at the time of his conviction and sentence. Although the affidavit contained information which indicated that appellant was not entitled to relief, it was not part of the files and records in the case. The portions of the files and records which conclusively show that appellant is not entitled to relief were not attached to the order denying the motion. The order therefore does not comply with the requirements of Rule 3.850.
The cause is remanded with instructions to the trial court to attach those portions of the record which refute appellant’s claims or to afford him an evidentiary hearing.
ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WENTWORTH, JJ., concur.
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Cited By
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Shaffner v. State, 562 So. 2d 430 (Fla. 1st DCA 1990)…the affidavit filed in the instant case contained information which indicated that appellant was not entitled to relief, it was not part of the file and record in the case. See Robinson v. State, 516 So. 2d 20 (Fla. 1st DCA 1987); McCorkle v. State, 419 So. 2d 373 (Fla. 1st DCA 1982); Youngblood v. State, 261 So. 2d 867 (Fla. 2nd DCA 1972). Nevertheless, the order denying the motion is affirmable for another reason. The motion was facially insufficient. Even assuming that a prisoner is entitled to relief und…
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Robinson v. State, 516 So. 2d 20 (Fla. 1st DCA 1987)…al judge attached to his order an affidavit of Robinson’s trial counsel upon which affidavit the court relied in denying the motion. This was error because the affidavit was not part of the files and records in [*21] the case. See McCorkle v. State, 419 So. 2d 373 (Fla. 1st DCA 1982). However, the trial court’s order of denial is sustainable on another basis — facial insufficiency of the motion. Ground two of Robinson’s motion simply alleged that his lawyer failed to present two alibi witnesses after he ask…
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Williamson v. State, 559 So. 2d 723 (Fla. 1st DCA 1990)…he trial court. Under these circumstances, neither the affidavits nor the motion to amend may be considered by this court in reviewing the post-conviction motion. See Russell v. State, 521 So. 2d 379 (Fla. 1st DCA 1988); Robinson; McCorkle v. State, 419 So. 2d 373 (Fla. 1st DCA 1982). With respect to Williamson’s allegation that defense counsel was ineffective for failing to object to the use of the closed circuit television procedure, the State concedes that defense counsel did not object to the procedure.…
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