ROBERT ROWLAND ROWE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1991-11-20
No. 90-3321
HERSEY, POLEN and FARMER, JJ., concur.
588 So. 2d 344 Florida District Court of Appeal, Fourth District (1991) Positive Treatment
Cited by 4 cases
Topics
Legal Sufficiency Of Motion Evidentiary Hearing Requirement

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PER CURIAM.

PER CURIAM.

We grant the motion for rehearing, vacate our previous opinion and substitute the following opinion.

This is an appeal from an order denying a motion for relief under rule 3.850, Florida Rules of Criminal Procedure. There was no evidentiary hearing, and the only attachment to the order of denial was a copy of the state’s response.

A trial court may summarily deny a motion made pursuant to rule 3.850 if, although in proper form, it is legally insufficient on its face. Gentry v. State, 464 So. 2d 659 (Fla. 4th DCA 1985). However, if a motion is legally sufficient and the files and records in the case do not conclusively show that the movant is not entitled to relief, there must be an evidentiary hearing to determine the merits of the defendant’s position.

We hold that the files and records tendered in this case do not meet the burden imposed by law, and we therefore reverse and remand for an evidentiary hearing.

REVERSED AND REMANDED.

HERSEY, POLEN and FARMER, JJ., concur.

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Cited By

  • Rowe v. Schreiber, 725 So. 2d 1245 (Fla. 4th DCA 1999)
    …minal Procedure 3.850, which the trial court denied without an evi-dentiary hearing. On November 20, 1991, this court reversed and remanded the case for an evidentiary hearing “to determine the merits of the defendant’s position.” See Rowe v. State, 588 So. 2d 344 (Fla. 4th DCA 1991). The grounds asserted in the motion for post-conviction relief were that numerous errors committed at trial by Rowe’s assistant public defender amounted to a violation of the constitutional right to effective assistance of couns…
  • Schreiber v. Rowe, 814 So. 2d 396 (Fla. 2002)
    …iminal Procedure 3.850, which the trial court denied without an evidentiary hearing. On November 20, 1991, this court reversed and remanded the case for an evidentiary hearing “to determine the merits of the defendant’s position.” See Rowe v. State, 588 So. 2d 344 (Fla. 4th DCA 1991). The grounds asserted in the motion for post-conviction relief were that numerous errors committed at trial by Rowe’s assistant public defender amounted to a violation of the constitutional right to effective assistance of couns…

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