Allen v. State

358 So. 2d 560, 1978 Fla. App. LEXIS 15392

• Court: District Court of Appeal of Florida
• Decided: April 10, 1978
• Docket: No. 77-2344
• Status: Published

Opinion

DAUKSCH, Judge.

We have for review an order of the Circuit Court of Palm Beach County summarily denying Appellant’s motion to vacate filed pursuant to Rule 3.850, Fla.R.Crim.P.

Rule 3.850 requires that a trial court grant an evidentiary hearing to consider issues raised by a motion filed under the rule unless the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief. Saunders v. State, 340 So.2d 940 (4 DCA 1976).

Appellant alleged in his motion that the trial court failed to grant him credit for all time served between the time he was charged and sentencing, a period of approximately two years according to the allegations of the motion. These allegations, if true, would entitle Appellant to post-conviction relief. Lawrence v. State, 306 So.2d 561 (4 DCA 1975); Miller v. State, 297 So.2d 36 (1 DCA 1974).

In denying Appellant’s Rule 3.850 motion, the trial court determined that Appellant was properly credited for time served prior to sentencing, a period of one year. However, we are unable to determine from the record on appeal the basis for the trial court’s finding that Appellant served only one year. Without a complete record, we cannot find that Appellant’s motion and the files and records of the case conclusively show that Appellant is entitled to no relief. See Saunders v. State, supra, and Hicks v. State, 165 So.2d 204 (2 DCA 1964); and Wright v. State, 355 So.2d 870 (Fla. 2 DCA 1978).

REVERSED and REMANDED for an ev-identiary hearing on Appellant’s Rule 3.850 motion.

ALDERMAN, C. J., and MOORE, J., concur.