JOE NATHAN BREWSTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed summary denial of post-conviction relief motion because trial court failed to conduct an evidentiary hearing or attach record portions refuting allegations of excessive sentencing and plea bargain violation.
A trial court must either conduct an evidentiary hearing or attach relevant record portions conclusively refuting post-conviction relief allegations before summarily denying a Rule 3.850 motion.
[1] A trial court summarily denying a post-conviction relief motion under Rule 3.850 must either conduct an evidentiary hearing or attach record portions conclusively refutin…
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Join FLexlaw to unlock all legal intelligenceDefendant Brewster filed a post-conviction relief motion under Florida Rule of Criminal Procedure 3.850 alleging his sentence exceeded the maximum aut…
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SCHEB, Judge.
This appeal is from the trial court’s summary denial of a motion seeking post-conviction relief under Florida Rule of Criminal Procedure 3.850.
Defendant raises three points in his motion, only two of which have merit. Defendant first alleges that his sentence was in excess of the maximum authorized by law, and second, that the trial court violated the plea bargain negotiated by defendant. These allegations, if true, would entitle defendant to relief. However, the trial court failed to either conduct an evidentiary hearing or attach relevant portions of the record which refute the allegations raised by defendant as required by Rule 3.850.
Accordingly, we reverse the trial court's denial of defendant’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 two allegations specified and attach to its order those portions of the record which conclusively show defendant is not entitled to relief, or hold an evidentiary hearing and then rule on the grounds alleged in defendant’s motion. See Fla.R.Crim.P. 3.850. See also Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982); Van Bever v. State, 405 So. 2d 474 (Fla. 5th DCA 1981). To obtain further review defendant must appeal the new ruling of the trial court.
REVERSED.
OTT, C.J., and HOBSON, J., concur.
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Citator
Cited By (19 total)
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State v. Overfelt, 457 So. 2d 1385 (Fla. 1984)…g that the defendant committed the crime while using a firearm either by finding him guilty of a crime which involves a firearm or by answering a specific question of a special verdict form so indicating.” 434 So. 2d at 948. See also Hough v. State, 448 So. 2d 628 (Fla. 5th DCA 1984); Smith v. State, 445 So. 2d 1050 (Fla. 1st DCA 1984); Streeter v. State, 416 So. 2d 1203 (Fla. 3d DCA 1982); Bell v. State, 394 So. 2d 570 (Fla. 5th DCA 1981). But see Tindall v. State, 443 So. 2d 362 (Fla. 5th DCA 1983). The que…
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Freeny v. State, 621 So. 2d 505 (Fla. 5th DCA 1993)…3 So. 2d 1106 (Fla. 2d DCA 1991); Belcher v. State, 550 So. 2d 1185 (Fla. 5th DCA 1989); Willingham v. State, 541 So. 2d 1240 (Fla. 2d DCA), rev. denied, 548 So. 2d 663 (Fla.1989); State v. Jones, 536 So. 2d 1161 (Fla. 5th DCA 1988); Hough v. State, 448 So. 2d 628 (Fla. 5th DCA 1984). In some cases where the information charges a defendant with committing a crime while armed with a firearm, and the jury finds the defendant guilty as charged, there may be a sufficient basis for the mandatory sentence. Jones.…1 / 2
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State v. Jones, 536 So. 2d 1161 (Fla. 5th DCA 1988)…correct. There was no specific finding by the jury that appellee personally, as opposed to vicariously, possessed the firearm. Vicarious possession is sufficient to convict but insufficient to warrant the mandatory minimum sentence. Hough v. State, 448 So. 2d 628 (Fla. 5th DCA 1984).…1 / 2
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982)
- VAN Bever v. State, 405 So. 2d 474 (Fla. 5th DCA 1981)