LEVI RICHARD MCCLENDON, PETITIONER,
v.
LOUIE L. WAINWRIGHT, DIRECTOR, DIVISION OF CORRECTIONS, RESPONDENT
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Florida appellate court reversed the denial of McClendon's Rule 3.850 motion to vacate his guilty plea for aggravated assault, holding that his second motion containing additional allegations of indigency, desire for counsel, and lack of waiver was legally sufficient and entitled him to an evidentiary hearing.
A prior per curiam opinion holding that a motion was legally insufficient does not foreclose consideration of a new motion on the same grounds where the necessary allegations have been added. Since the record does not conclusively disprove the new allegations, an evidentiary hearing is required.
[1] A motion to vacate judgment and sentence is legally sufficient if it alleges indigence, desire for counsel, and lack of waiver of counsel at the time of pleading guilty,…
[2] A prior denial of a motion to vacate, affirmed on appeal due to insufficient allegations, does not preclude consideration of a subsequent motion to vacate that includes t…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“This allegation standing alone is insufficient to show a right to relief under Rule 3.850 CrPR.”
Establishes that the first motion was denied solely for legal insufficiency of allegations
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcClendon pled guilty without counsel on June 8, 1970, to aggravated assault and was sentenced February 17, 1971. He filed a motion to vacate on July …
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By habeas corpus we have granted petitioner delayed appellate review of an order entered May 5, 1972 denying his motion to vacate under Rule 3.850, RCrP, 33 F.S.A.
On June 8, 1970, without counsel present, petitioner pled guilty to the offense of aggravated assault. On February 17, 1971, he was adjudged guilty and sentenced. On July 22, 1971, petitioner filed his motion to vacate judgment and sentence alleging as ground for relief that he was without counsel at the time he pled guilty. The motion was denied by order of July 28, and on appeal therefrom, McClendon v. State, Fla. *704App.1972, 260 So.2d 255, we stated as follows :
“The motion alleged as the ground for relief that defendant was without counsel at the time he pled guilty. This allegation standing alone is insufficient to show a right to relief under Rule 3.850 CrPR. On this basis only we affirm the appealed order. Rose v. State, Fla.App.1970, 235 So.2d 353.”
Petitioner then filed in the trial court on May 2, 1972, a further motion to vacate in which he alleged not only the fact that he was without counsel when he pled guilty, but also that at the time of entering the plea he was indigent, that he desired to have the aid of counsel, and that he had not waived his right to counsel. With these additional allegations, the motion was legally sufficient, if true, to entitle petitioner to relief. Lawson v. State, Fla.1970, 231 So.2d 205; Rose v. State, Fla.App.1970, 235 So.2d 353. Nonetheless, the court again denied the motion without evi-dentiary hearing. The order denying the motion (which is the order appealed) stated that the court would not consider this ground since it was the subject of a prior motion which had been denied and affirmed on appeal.
Our prior per curiam opinion (260 So.2d 255) affirming the order of July 28, 1971 simply held that the order correctly denied the motion because the allegations were legally insufficient. This did not foreclose consideration of a new motion to vacate on the same grounds where the necessary allegations have been added. Archer v. State, Fla.App.1964, 166 So.2d 163. Since the record does not conclusively show that such allegations are not true, an evidentiary hearing is required. The order is reversed and this cause remanded for further proceedings consistent herewith.
Reversed and remanded.
CROSS and MAGER, JJ., concur.
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Citator
Cited By
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Scott v. State, 364 So. 2d 67 (Fla. 4th DCA 1978)…/appellant’s brief before this court filed by the Public Defender now seeks leave to refile the motion before the trial court. We are not at all certain that leave of this court is necessary, but it is certainly granted. See McClendon v. Wainwright, 280 So. 2d 703 (Fla. 4th DCA 1973). It is not our intention to require overly technical rule compliance in all pro se pleadings. However, Rule 3.850 was spe [*68] cifically designed for the unrepresented.1 Indeed, Rule 3.987 of the Florida Rules of Criminal Proced…
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Clements v. State, 340 So. 2d 1183 (Fla. 4th DCA 1976)…relief. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Furthermore, inasmuch as the record does not conclusively demonstrate that such allegations are not true an evidentiary hearing is required. McClendon v. Wainwright, 280 So. 2d 703 (Fla. 4th DCA 1973). REVERSED AND REMANDED to the trial court for further proceedings. MAGER, Ci J., and CROSS and ALDERMAN, JJ., concur.…
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Pair v. State, 295 So. 2d 679 (Fla. 4th DCA 1974)…l, was insolvent and unable to procure counsel at the time of his conviction in 1946. Accordingly, the judgment is affirmed without prejudice to the re-filing of a motion containing the necessary allegations. McClen-don v. Wainwright, Fla.App. 1973, 280 So. 2d 703. OWEN, C. J., and CROSS and MAGER, JJ., concur.…
Authorities Cited
- Reuel Lawson v. State, 231 So. 2d 205 (Fla. 1970)
- Archer v. State, 166 So. 2d 163 (Fla. 2d DCA 1964)
- Rose v. State, 235 So. 2d 353 (Fla. 3d DCA 1970)
- McCLENDON v. State, 260 So. 2d 255 (Fla. 4th DCA 1972)