KIM P. KRUGER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A legally sufficient motion for post-conviction relief cannot be summarily denied without attaching record portions or holding an evidentiary hearing.
Appellant sought post-conviction relief alleging ineffective assistance of counsel regarding his speedy trial rights. The trial court denied the motio…
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PER CURIAM.
Appellant seeks review of the trial court’s summary denial of his motion for post conviction relief under Rule 3.850, Florida Rules of Criminal Procedure. He alleged that the ineffective assistance of trial counsel resulted in a violation of his right to a speedy trial.1 The trial judge denied the motion without conducting an evidentiary hearing or without attaching portions of the record or file to refute appellant’s claim.
We find the motion is legally sufficient, given the allegations in the appellant’s motion that trial counsel, the Public Defender, has conceded ineffective assistance of counsel by its office. In order to deny a legally sufficient motion for post conviction relief without an evidentiary hearing, the trial court must attach portions of the record or file that conclusively demonstrate that the movant is not entitled to relief. Gentry v. State, 464 So. 2d 659 (Fla. 4th DCA 1985).
We reverse and remand with directions to the trial court to attach portions of the record or file that conclusively demonstrate that appellant is not entitled to relief or to conduct an evidentiary hearing to determine whether appellant was denied effective assistance of counsel.
GLICKSTEIN, POLEN and GARRETT, JJ., concur. . The trial court denied appellant’s first motion for discharge, but granted his second motion. The State appealed and this court reversed the order of discharge. State v. Kruger, 539 So. 2d 565 (Fla. 4th DCA 1989). On remand, appellant entered a guilty plea. He acknowledges that the guilty plea precludes a direct appeal of his conviction.
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State v. Kruger, 615 So. 2d 757 (Fla. 4th DCA 1993)…d a conflict of interest. His second motion alleged a violation of his right to a speedy trial. This court reversed the trial court’s summary dismissal of these motions and directed the trial court to conduct an evidentiary hearing. Kruger v. State, 566 So. 2d 77 (Fla. 4th DCA 1990). On March 28 and May 23, 1991, the trial court conducted an evidentiary hearing. Kruger testified his first public defender waived his speedy trial rights against his wishes because she was unprepared for trial. The public defen…
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COX v. State, 570 So. 2d 1155 (Fla. 4th DCA 1990)…PER CURIAM. AFFIRMED. See Barber v. State, 564 So. 2d 1169 (Fla. 1st DCA 1990); Horne v. State, 566 So. 2d 77 (Fla. 4th DCA 1990). ANSTEAD, LETTS and WALDEN, JJ., concur.…
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Mitchell v. State, 575 So. 2d 798 (Fla. 4th DCA 1991)…antive offense based on one’s status as a habitual offender by eliminating gain time and parole consideration, but rather the enhanced punishment is only an incident to the offense charged. Eutsey v. State, 383 So. 2d 219 (Fla.1980); Horne v. State, 566 So. 2d 77 (Fla. 4th DCA 1990); Johnson v. State, 564 So. 2d 1174 (Fla. 4th DCA 1990); Leggett v. State, 563 So. 2d 838 (Fla. 4th DCA 1990). GLICKSTEIN and STONE, JJ. and WALDEN, JAMES H., (Retired), Associate Judge, concur.…
Authorities Cited
- Fla. Atl. Assocs. v. Belmont, 464 So. 2d 659 (Fla. 4th DCA 1985)
- State v. Kruger, 539 So. 2d 565 (Fla. 4th DCA 1989)