REX HYER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Rex Hyer appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.
Appellant asserts that his trial counsel was ineffective by failing to advise him that he was entitled to elect guidelines sentencing. This allegation presents a factual issue that is not resolved by the attachments to the order summarily denying the motion. See Wright v. State, 492 So. 2d 394 (Fla. 1st DCA 1986); Buford v. State, 496 So. 2d 158 (Fla. 4th DCA 1986); Hendrix v. State, 491 So. 2d 1172 (Fla. 5th DCA 1986). The remaining contentions of appellant are without merit.
Accordingly, we reverse and remand to the trial court for further proceedings consistent with rule 3.850. Any party aggrieved by the subsequent action of the trial court must file a notice of appeal within thirty days to obtain appellate review.
CAMPBELL, A.C.J., and SCHOONOVER and LEHAN, JJ., concur.
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Musgrove v. State, 524 So. 2d 715 (Fla. 1st DCA 1988)…judications equivalent to conviction of an adult. Weems v. State; Walker v. State, 519 So. 2d 1105 (Fla. 3rd D.C.A. 1988); Carter v. State, 510 So. 2d 930 (Fla. 5th D.C.A. 1987); Jones v. State, 501 So. 2d 665 (Fla. 1st D.C.A. 1987); White v. State, 501 So. 2d 189 (Fla. 5th D.C.A. 1987). In this case, seven entries appear on appellant’s juvenile “rap sheet,” only three of which clearly and unambiguously reflect adjudications equivalent to conviction of an adult. Of the three offenses which resulted in adjudic…
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Arzell Brown, Jr. v. State, 528 So. 2d 981 (Fla. 2d DCA 1988)…ithout an evidentiary hearing and in its order incorporated by reference the state’s attachments to its response to Brown’s motion. None of these attachments conclusively refutes Brown’s allegation, which presents a factual issue. See Hyer v. State, 501 So. 2d 189 (Fla.2d DCA 1987). Accordingly, we reverse and remand to the trial court for further proceedings consistent with Florida Rule of Criminal Procedure 3.850. Any party aggrieved by the subsequent action of the trial court must file a notice of appeal…
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Crocker v. State, 568 So. 2d 116 (Fla. 5th DCA 1990)…AFFIRMED in part; SENTENCE VACATED in Case No. 89-586-CF-J; and REMANDED for correction of sentence. DATJKSCH and PETERSON, JJ., concur. . This court earlier indicated that a "minimal" juvenile record should not justify departure. White v. State, 501 So. 2d 189 (Fla. 5th DCA 1987). . Puffinberger v. State, 558 So. 2d 189 (Fla. 4th DCA 1990).…
Authorities Cited
- Accent Realty OF Jacksonville, Inc. v. Crudele, 496 So. 2d 158 (Fla. 3d DCA 1986)
- Hendrix v. State, 491 So. 2d 1172 (Fla. 5th DCA 1986)
- Wright v. State, 492 So. 2d 394 (Fla. 1st DCA 1986)
- Buford v. State, 496 So. 2d 158 (Fla. 4th DCA 1986)