MOSES K. MURRAY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The trial court erred in denying the appellant's motion for relief without first holding a hearing to receive evidence on the allegations.
Appellant filed a motion for relief under Criminal Rule No. 1. The motion was heard by a successor judge, with the Public Defender present but the app…
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Appellant, Moses K. Murray, appeals from an order denying relief prayed for under Criminal Rule No. 1, F.S.A. ch. 924 Appendix.
The “petition” was heard and ruled upon by a judge of the Criminal Court of Record who had not presided at the trial of the accused, but was the successor to the late Judge Ben Willard, the trial judge. Appellant was not present at the hearing, but the Public Defender was present and made an argument in support of appellant’s motion.
The trial court erred in denying appellant’s motion for relief without having first held a hearing for the purpose of receiving evidence in regard to the allegations in the motion.
In State v. Weeks, Fla.1964, - So.2d -, the Supreme Court set out the applicable procedure to be followed by the trial court:
“4. If the motion on its face states a case for relief the trial court must then look to the record to ascertain whether it ‘conclusively’ reveals no entitlement to relief.
*314“5. The trial judge has a sound judicial discretion to decide initially whether the claims presented are substantial. In doing so he must assume that the factual allegations of the motion are true unless the trial records conclusively reflect the contrary.”
It is manifestly apparent that the record before the trial court was not sufficient for determining the truth or falsity of the numerous allegations of error assigned by appellant. The trial record did not “conclusively” refute the allegations of error raised by appellant, and for that reason we reverse and remand for a hearing to establish the truth or falsity of these allegations.
Reversed and remanded.
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Crusoe v. State, 183 So. 2d 600 (Fla. 2d DCA 1966)…udge’s lack of knowledge thereof must yield to the affirmative showing of the certified record. See Albright v. State, Fla.App.1964, 163 So. 2d 895; Abbott v. State, Fla.App.1964, 164 So. 2d 243; Dykes v. State, supra; Murray v. State, Fla.App.1964, 162 So. 2d 313; Hale v. State, Fla.App.1964, 162 So. 2d 5; Everett v. State, Fla.App.1964, 161 So. 2d 714. [*605] Furthermore, the record discloses that this was the second motion for relief from the same sentences filed by defendant under Rule No. 1, a previous s…
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Cleveland Williams v. State, 163 So. 2d 767 (Fla. 2d DCA 1964)…falsity of the numerous allegations made by the iietitioner in his motion. The trial record, or the record on the hearing on the motion, must conclusively refute the allegations of error raised by tbe appellant. E. g. Murray v. State, Fla.App.1964, 162 So. 2d 313. In Furman v. State, Fla.App.1964, 162 So. 2d 308, the 3rd District Court of Appeal held that it was reversible error to deny the motion and grant a new trial inasmuch as the accused had a constitutional right to be advised that he is entitled to c…
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Murray v. State, 175 So. 2d 236 (Fla. 3d DCA 1965)…ant filed his notice of appeal and the Public Defender was appointed to represent him. This court reversed the trial court and remanded the case for the purpose of receiving evidence on the allegations in the petition. Murray v. State, Fla.App.1964, 162 So. 2d 313. A hearing was held by the trial court on the allegations, at which time the files and records were examined; the appellant testified, and the attorneys for the State and appellant were both before the court. The court entered its order denying the…