KENNETH RUDOLPH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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MILLS, Judge.
Rudolph appeals from an order denying him post-conviction relief sought pursuant to Florida Rules of Criminal Procedure 3.850. We reverse and remand.
Rule 3.850 requires that in those instances where the denial of a motion for post-conviction relief is not based on the legal insufficiency of the motion, “a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief shall be attached to the order,” or an evidentiary hearing be granted. Calhoun v. State, 362 So. 2d 726 (Fla. 1st DCA 1978). Neither action was taken by the court below. Accordingly, we remand this case to the trial court with instructions to (1) attach those portions of the case file and record which refute the appellant’s allegations, or (2) conduct an evidentiary hearing and, then, either grant or deny the relief sought by the appellant. Payne v. State, 362 So. 2d 688 (Fla. 2d DCA 1978); Cookish v. State, 416 So. 2d 53 (Fla. 4th DCA 1982).
Reversed and remanded with directions.
BOOTH, C.J., and THOMPSON, J., concur.
The State urges, and we agree, that our opinion should be modified to direct the trial court to comply with Rule 3.850 as amended in 1984. The opinion is therefore modified to require the trial court to (1) attach those portions of the files and records conclusively showing the defendant is entitled to no relief, or (2) conduct further proceedings in accordance with Rule 3.850. Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986); Wright v. State, 492 So. 2d 394 (Fla. 1st DCA 1986); Price v. State, 487 So. 2d 34 (Fla. 1st DCA 1986).
BOOTH, C.J., and THOMPSON, J., concur.
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Katherine A. Singer N/ K/ a Katherine A. Eichler v. Singer, 44 Fla. L. Weekly D2889 (Fla. 2d DCA 2020)…newly discovered evidence . . . is the concept that the evidence would have affected the outcome of the trial at the time it occurred, and thus must have been in existence." In support, he cites to our decision in Noor v. Continental Casualty Co., 508 So. 2d 363 (Fla. 2d DCA 1987). Mr. Singer's reading of the rule is far too cramped. Rule 12.540(b)(2) provides only that to qualify as newly discovered evidence, the evidence simply could not have been discovered through due diligence in time to move for a ne…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986)
- Price v. State, 487 So. 2d 34 (Fla. 1st DCA 1986)
- Payne v. State, 362 So. 2d 688 (Fla. 2d DCA 1978)
- Calhoun v. State, 362 So. 2d 726 (Fla. 1st DCA 1978)
- Wright v. State, 492 So. 2d 394 (Fla. 1st DCA 1986)
- Pressler v. Cmty. Hosp. OF the Palm Beaches, Inc., 416 So. 2d 53 (Fla. 4th DCA 1982)
- Cookish v. State, 416 So. 2d 53 (Fla. 4th DCA 1982)