SAM CHERRY, APPELLANT,

v.

STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1991-12-02

No. 91-1129

JOANOS, C.J., SHIVERS and ZEHMER, JJ., concur.

590 So. 2d 494 Florida District Court of Appeal, First District (1991) Positive Treatment

Cited by 6 cases

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Holding

The court held that the trial court erred by denying a post-conviction relief motion without attaching the relevant portions of the record that conclusively refuted the allegations.

Headnotes

[1] A trial court order summarily denying a motion for post-conviction relief must attach portions of the files and records that conclusively show the prisoner is entitled to…

[2] If a trial court fails to attach the necessary documentation to an order denying a motion for post-conviction relief, the order must be reversed and remanded.

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Facts & Procedural History

Defendant filed a motion for post-conviction relief alleging ineffective assistance of counsel. The trial court summarily denied the motion, finding t…

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Topics

Nolo Contendere Plea Habitual Offender Sentencing Florida Rule Of Criminal Procedure 3.850 Motion For Postconviction Relief

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Opinion of the Court

PER CURIAM.

Sam Cherry has appealed from an order of the trial court summarily denying his motion for post-conviction relief, filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We reverse and remand for further proceedings under the rule.

In December 1989, Cherry pled nolo con-tendere to dealing in stolen property in return for a nine year sentence as an habitual offender. He appealed to this court, challenging the constitutionality of the habitual offender statute; the court affirmed without opinion. Cherry v. State, 581 So. 2d 1312 (Fla. 1st DCA 1991). In March 1991, Cherry filed the instant motion alleging ineffective assistance of counsel in that his counsel coerced him into entering a plea, and failed to explain the consequences of agreeing to the imposition of habitual offender status. The trial court summarily denied the motion, finding its allegations refuted by the written plea form, and the transcript of the plea and sentencing proceeding. Although the order purports to attach the form and transcript, no such attachments appear in our record.

When a 3.850 motion is denied without a hearing, and such denial is not predicated upon the legal insufficiency of the motion on its face, 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. Rule 3.850, Fla.R.Crim.P. No such attachment was made in this case. Therefore, the order of the trial court is reversed, and the case remanded for either attachment of that portion of the files and records conclusively showing that Cherry is entitled to no relief, or for further proceedings pursuant to Rule 3.850. Reversed and remanded with directions.1

JOANOS, C.J., SHIVERS and ZEHMER, JJ., concur. . Because reversal in this case is based entirely upon the trial court’s omission to attach that portion of the files and records conclusively showing that Cherry is entitled to no relief, the court does not request a response from the Attorney General prior to reversal as set forth in Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986).

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Montgomery v. State, 615 So. 2d 226 (Fla. 5th DCA 1993)

…red plea); Small v. State, 600 So. 2d 518 (Fla. 5th DCA 1992) (claim in direct appeal that public defender misrepresented sentencing guidelines range which induced defendant to plea sufficient to entitle defendant to withdraw plea); Cherry v. State, 590 So. 2d 494 (Fla. 1st DCA 1991) (error to deny claim that plea was coerced without understanding of habitual offender consequences based on plea agreement and transcript not attached); Colon v. State, 586 So. 2d 1305 (Fla. 2d DCA 1991) (claim that plea was ente…
Brooks v. State, 644 So. 2d 149 (Fla. 1st DCA 1994)

…to either conduct an evidentiary hearing or include the appropriate attachments supporting denial. Fla.R.App.P. 9.140(g); Hall v. State, 603 So. 2d 650 (Fla. 1st DCA 1992); Wells v. State, 598 So. 2d 259 [*150] (Fla. 1st DCA 1992); Cherry v. State, 590 So. 2d 494 (Fla. 1st DCA 1991). REVERSED AND REMANDED. ZEHMER, C.J., and BOOTH and DAVIS, JJ., concur.…
Minton v. State, 702 So. 2d 638 (Fla. 1st DCA 1997)

…y event, because no portion of the record is attached to the order refuting at least one clearly sufficient claim and because the State has conceded the need for an evidentia-ry hearing, we reverse for further proceedings below. See Cherry v. State, 590 So. 2d 494 (Fla. 1st DCA 1991). REVERSED and REMANDED. BARFIELD, C.J., and DAVIS and BENTON, JJ., concur.…

Authorities Cited

Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986)

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