HENRY B. DIAZ, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court held that the trial court erred by summarily denying the motion for post-conviction relief without an evidentiary hearing or attaching the record.
Appellant pleaded guilty to aggravated battery and later filed a motion for post-conviction relief, alleging his plea was involuntary because the tria…
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HOBSON, Acting Chief Judge.
Henry B. Diaz, Jr. appeals an order summarily denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. We reverse and remand.
Appellant was charged with aggravated battery to which he pled guilty. The sole meritorious point alleged in appellant’s Rule 3.850 motion is that his guilty plea was involuntarily entered in that the trial court purportedly failed to inform him that in so doing appellant had waived his right to appeal. Such claim, if true, might entitle appellant to relief. See Fla.R.Crim.P. 3.172(c)(iv). The trial court, however, failed to conduct an evidentiary hearing or to attach the portion of the record which conclusively refutes appellant’s 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, and attach to its order those portions of the record which conclusively show that appellant is not entitled to relief, or hold an evidentiary hearing and then rule on the allegations raised in appellant’s motion. See Fla.R.Crim.P. 3.850; Halpin v. State, 428 So. 2d 703 (Fla. 2d DCA 1983); Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982). To obtain further review in this cause, either aggrieved party must appeal the new ruling of the trial court.
REVERSED and REMANDED.
GRIMES and CAMPBELL, JJ., concur.
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Anfield v. State, 576 So. 2d 388 (Fla. 2d DCA 1991)…eral allegations contained in Anfield’s motion, only two are facially sufficient. First, Anfield claimed that the trial court failed to determine the voluntariness of the plea by conducting the colloquy provided for in rule 3.172. See Diaz v. State, 439 So. 2d 1011 (Fla. 2d DCA 1983). Second, he claimed that he bargained for a term of twelve years’ imprisonment, but was sentenced to concurrent terms of twenty-seven years’ imprisonment, with consecutive three-year minimum mandatory sentences imposed on four of…
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BIR v. State, 515 So. 2d 397 (Fla. 1st DCA 1987)…ndere plea, failed to tell the defendant of “his right to preserve issues for appeal in the context of a nolo contendere plea.” It is one thing to fail to inform a defendant that by entering his plea he waives his right to appeal. See Diaz v. State, 439 So. 2d 1011 (Fla. 2nd DCA 1983). That is entirely different from saying that a defendant who pleads nolo contendere must be informed, as a prerequisite to the validity of the plea, that the Court, in its discretion, may, if the defendant so requests, permit the…
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Clements v. State, 537 So. 2d 1141 (Fla. 3d DCA 1989)…PER CURIAM. Affirmed. See Dutton v. State, 504 So. 2d 435 (Fla. 2d DCA 1987); Diaz v. State, 439 So. 2d 1011 (Fla. 2d DCA 1983); Finley v. State, 394 So. 2d 215 (Fla. 1st DCA 1981).…
Authorities Cited
- Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982)
- Halpin v. State, 428 So. 2d 703 (Fla. 2d DCA 1983)