JOHN M. SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1989-11-29
No. 89-03043
SCHEB, A.C.J., and SCHOONOVER and THREADGILL, JJ., concur.
553 So. 2d 293 Florida District Court of Appeal, Second District (1989) Positive Treatment
Cited by 2 cases
Topics
Summary Denial Of Motion Evidentiary Hearing Requirement Florida Rule Of Criminal Procedure 3.850 Motion For Postconviction Relief

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Opinion of the Court
PER CURIAM.

PER CURIAM.

John M. Smith appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Although the trial judge denied the motion without an evidentiary hearing, he did not attach to his order any portion of the files or records to refute appellant’s allegations.

Accordingly, we reverse the trial court’s denial of appellant’s motion and remand the case to the trial court. On remand, unless the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall order the state attorney to file an answer within a time certain. After receipt of the answer, the court shall determine whether an evidentiary hearing is required. If the court should again deny appellant’s motion, he has thirty days in which to appeal.

Reversed and remanded.

SCHEB, A.C.J., and SCHOONOVER and THREADGILL, JJ., concur.

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  • Arnett v. State, 598 So. 2d 235 (Fla. 1st DCA 1992)
    …1st DCA 1990). Similarly, it is well settled that the total of the incarcerative and probationary portions of a split sentence may not exceed the term provided by general law. Roache v. State, 547 So. 2d 706, 707 (Fla. 1st DCA 1989); Bono v. State, 553 So. 2d 293, 294 (Fla. 1st DCA 1989). Burglary of a conveyance is a third degree felony, see § 810.-02(3), Fla.Stat.(1989), for which the maximum penalty is five years. See § 775.-082(3)(d), Fla.Stat.(1989). Therefore, appellant’s five-year concurrent sentences…
  • Dussault v. State, 578 So. 2d 430 (Fla. 5th DCA 1991)
    …reverse and remand on the second issue. Probation cannot be extended beyond the maximum period of statutorily prescribed incarceration, which, under section 812.13(2)(c), Florida Statutes, is five years for a third-degree felony. See Bono v. State, 553 So. 2d 293 (Fla. 1st DCA 1989); Swift v. State, 362 So. 2d 723 (Fla. 2d DCA 1978); see also Kolovrat v. State, 574 So. 2d 294 (Fla. 5th DCA 1991). Dussault is entitled to have the record corrected notwithstanding the imposition of concurrent fifteen-year proba…

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