FRANKIE L. CLEMENTS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the defendant is entitled to an evidentiary hearing on his motion to vacate.
The defendant pled guilty to robbery and was sentenced to life imprisonment. He later filed a motion to vacate, alleging his plea was involuntary due …
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PER CURIAM.
Frankie L. Clements appeals from an order denying his motion to vacate pursuant to Rule 3.850, Fla.R.Crim.P. Clements was charged with robbery in April of 1972. He pled guilty and was sentenced to life imprisonment. In May of 1972, Clements filed a pro se motion to vacate judgment and sentence alleging that his guilty plea was not voluntarily entered due to his mental and physical imcompe-tence inasmuch as he was severely injured and under the influence of drugs. The motion was summarily denied. A second motion to vacate was filed, and summarily denied. This appeal ensued.
The record before this court reflects that the trial judge who accepted the plea of guilty was no longer presiding at the time the motion was heard, and that the transcript of the plea proceedings is unavailable. Thus, there were no records before the trial court at the time that Clement’s motion was heard which conclusively refutes the allegations. For this reason, Clements is entitled to an evidentiary hearing. Winegard v. State, 234 So. 2d 166 (Fla.2d DCA 1970).
Reversed and remanded.
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Jones v. State, 384 So. 2d 736 (Fla. 4th DCA 1980)…the allegation of ineffective assistance of counsel. It is clear that a criminal defendant cannot initially raise ineffective assistance of counsel on a direct appeal from his conviction. State v. Barber, 301 So. 2d 7 (Fla. 1974); Randall v. State, 346 So. 2d 1233 (Fla.3d DCA 1977). Instead, the issue should be raised initially in a 3.850 motion before the trial court. We sympathize with the trial judge. In this case, Judge Thomas Coker, Jr., presided over the defendant’s trial where he was found guilty, conv…
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Maugeri v. State, 460 So. 2d 975 (Fla. 3d DCA 1984)…been requested by defense counsel, see Jones v. State, 197 So. 2d 829 (Fla. 3d DCA 1967). Finally, no error was involved in the fact that, without objection, the defendant was not present during a portion of the charge conference. Randall v. State, 346 So. 2d 1233 (Fla. 3d DCA 1977).…
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- Winegard v. State, 234 So. 2d 166 (Fla. 2d DCA 1970)