RODNEY WHITTLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed summary denial of post-conviction relief motion for ineffective assistance of counsel and involuntary plea because trial court failed to conduct an evidentiary hearing or attach record portions refuting the allegations.
A trial court must either conduct an evidentiary hearing on a Rule 3.850 post-conviction motion alleging ineffective assistance of counsel and involuntary plea, or summarily deny it while attaching pertinent record portions that conclusively refute the allegations.
[1] On a motion for post-conviction relief under Rule 3.850 alleging ineffective assistance of counsel or involuntary plea, the trial court must either conduct an evidentiary…
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Join FLexlaw to unlock all legal intelligenceAppellant Whittle filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, alleging he was denied effective assistanc…
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RYDER, Judge.
This appeal is from the summary denial of a motion seeking post-conviction relief under Florida Rule of Criminal Procedure 3.850. The allegations that appellant was denied effective assistance of counsel, and the involuntariness of appellant’s plea, if true, would entitle appellant to relief. However, the trial court failed to either conduct an evidentiary hearing or attach the pertinent portions of the record which refute those allegations.
Accordingly, we reverse the trial court’s denial of appellant’s motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion as to the allegations specified and attach to its order those portions of the record which are pertinent and conclusively show that appellant is not entitled to relief, or hold an evidentiary hearing and then rule on the grounds alleged in 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.
Accordingly, the order appealed from is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.
GRIMES, A.C.J., and DANAHY, J, concur.
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Dep't OF Prof'l Reg. v. John H. LeBARON, D.D.S., 443 So. 2d 225 (Fla. 1st DCA 1983)…ble cause findings against Dr. LeBaron. Dr. LeBar-on cross-appeals contending that the Department acted in derogation of Rule 28-5.-205, Florida Administrative Code, and this court’s recent decision in Boedy v. Department of Professional Regulation, 428 So. 2d 758 (Fla. 1st DCA 1983), which require final disposition of the order dismissing the complaint by the Board of Dentistry before review may be sought in this court. We agree that the hearing officer’s order is not appealable and dismiss the petition. Ru…
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Boedy v. Dep't OF Prof'l Reg., 433 So. 2d 544 (Fla. 1st DCA 1983)…PER CURIAM. On remand pursuant to our decision and opinion, 428 So. 2d 758, announced March 25, 1983, the Board of Medical Examiners on April 21, 1983, entered an order denying petitioner Boedy’s motion to dismiss for lack of jurisdiction, saying: [Boedy’s] argument that [the Board] lacks jurisdiction to discipline inact…
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N. Broward Hosp. Dist. v. Humana OF Fla., Inc., 444 So. 2d 594 (Fla. 1st DCA 1984)…984); Department of Professional Regulation v. LeBaron, D.D.S., 443 So. 2d 225 (Fla. 1st DCA 1983); Beckum, O.D. v. Department of Health and Rehabilitative Services, 443 So. 2d 227 (Fla. 1st DCA 1983); Boedy v. Department of Professional Regulation, 428 So. 2d 758 (Fla. 1st DCA 1983). The issue raised by NBHD regarding the correctness of the hearing officer’s denial of its petition to intervene should be addressed by HRS before it is addressed here. If the agency disagrees with the hearing officer’s recommend…
Authorities Cited
- Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982)
- VAN Bever v. State, 405 So. 2d 474 (Fla. 5th DCA 1981)