HOWARD JAMES SALMON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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ZEHMER, Judge.
Howard James Salmon appeals the denial of his rule 3.850 motion for post-conviction relief without an evidentiary hearing. Upon initially reviewing this appeal, we determined that the rule 3.850 motion was facially sufficient and the lower court denied it without attaching portions of the record conclusively refuting the allegations contained in the motion. In keeping with Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986), however, we ordered the Attorney General’s office to file a brief responding to this appeal. As the response from the Attorney General’s office has not demonstrated any valid basis for affirming the appealed order, we reverse and remand to the lower court with directions that it reconsider the motion and either attach those portions of the record that conclusively refute its allegations that the court erred in failing to allow Salmon to withdraw his plea of no contest, or, if the record does not conclusively contradict those allegations, conduct an evidentiary hearing on this issue. Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982).
REVERSED AND REMANDED.
JOANOS and THOMPSON, JJ., concur.
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- Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986)
- Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982)