HENRY L. PAYNE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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RYDER, Judge.
Appellant moved to vacate the sentence given him after a plea of guilty, alleging that his appointed counsel was ineffective and that his plea was involuntary. The trial judge denied the motion without attaching any portion of the record or file and without holding an evidentiary hearing to determine the veracity of appellant’s allegations.
If, as is the case here, a motion to vacate sentence addresses matters which can be raised in a collateral attack, and alleges facts which, if true, would entitle a prisoner to relief, then the judge reviewing the motion must attach that portion of the case file or record which conclusively shows that the prisoner is entitled to no relief, or grant an evidentiary hearing. See Fla.R. Crim.P. 3.850. Neither action was taken by the court below. The cause is, therefore, REMANDED to the trial court under a temporary relinquishment of jurisdiction with instructions (a) to attach that portion of the case file and record which refutes appellant’s allegations; or (b) to conduct an evidentiary hearing and, then, either grant or deny the relief sought by appellant.
GRIMES, C. J., and SCHEB, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Meeks v. State, 382 So. 2d 673 (Fla. 1980)…on of the case file or record which conclusively shows that the prisoner is entitled to no relief or grant an evidentia-ry hearing. Gunn v. State, 378 So. 2d 105 (Fla. 5th DCA 1980); Giles v. State, 363 So. 2d 164 (Fla. 3d DCA 1978); Payne v. State, 362 So. 2d 688 (Fla. 2d DCA 1978). Based on our review of the record presented to this Court, we cannot say that appellant’s specific allegations of ineffective assistance of counsel, considered collectively, conclusively show a lack of merit so as to obviate the…
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VAN Bever v. State, 405 So. 2d 474 (Fla. 5th DCA 1981)…ion of the case file or record which conclusively shows that the prisoner is not entitled to relief, or must grant an evidentiary hearing. Meeks v. State, 382 So. 2d 673 (Fla. 1980); Gunn v. State, 378 So. 2d 105 (Fla. 5th DCA 1980); Payne v. State, 362 So. 2d 688 (Fla. 2d DCA 1978). Though his motion lacks the artfulness of an attorney’s hand, Van Bever alleges two prima facie grounds for relief from the plea and sentence. “Ground Two” alleges that at the time of the plea, Van Bever’s counsel informed him th…
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Gunn v. State, 378 So. 2d 105 (Fla. 5th DCA 1980)…lly asserts that “denial of effective assistance of counsel prevented these facts, matters and grounds to be on appeal . . . ” Denial of effective assistance of counsel at trial or plea is an issue appropriate for collateral relief. Payne v. State, 362 So. 2d 688 (Fla. 2d DCA 1978); Robinson v. State, 352 So. 2d 936 (Fla. 1st DCA 1977); Chambers v. State, 337 So. 2d 845 (Fla. 2d DCA 1976); Hill v. State, 297 So. 2d 58 (Fla. 2d DCA 1974); Lay v. State, 224 So. 2d 369 (Fla. 4th DCA 1969). This cause, therefor…
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