AMADO L. PEDROSO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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[*1303] PER CURIAM.
This appeal is from the summary denial of a motion seeking postconviction relief under Florida Rule of Criminal Procedure 3.850. Appellant’s singular point in his motion alleges that he was denied effective assistance of counsel. He asserts that trial counsel failed to object to the court’s retention of jurisdiction over one-third of appellant’s sentence without stating with particularity the reasons for doing so. If this allegation is true, appellant might be entitled to postconviction relief. The trial court, however, failed to conduct an evidentiary hearing or attach portions of the record which refute this allegation.
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 allegation raised in appellant’s 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.
REVERSED and REMANDED.
GRIMES, A.C.J., and SCHEB and DAN-AHY, JJ., concur.
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McCULLUM v. State, 498 So. 2d 1374 (Fla. 3d DCA 1986)…e the trial court. This being so, we find it appropriate to treat the instant appeal as a petition for writ of habeas corpus, see [*1376] Smith v. State 400 So. 2d 956, 960 (Fla.1981); Peri v. State, 458 So. 2d 62 (Fla. 3d DCA 1984); White v. State, 456 So. 2d 1302 (Fla. 2d DCA 1984), and grant relief. We are not convinced by the state’s argument that the absence of improper reasons would not have affected the extent of the departure. See Lerma v. State, 497 So. 2d 736 (Fla.1986) (supreme court’s finding that…
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- Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982)
- VAN Bever v. State, 405 So. 2d 474 (Fla. 5th DCA 1981)