Balvin v. State

District Court of Appeal of Florida

Balvin v. State

921 So. 2d 12, 2006 Fla. App. LEXIS 14, 2006 WL 14307

District Court of Appeal of Florida·Decided January 4, 2006·No. No. 3D05-2033·Published·Cited by 1 cases

Opinion

FLETCHER, Judge.

William Dejesus Balvin appeals from an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. [13]*13On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. Crim P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing to determine (1) whether the defendant may belatedly petition for post-conviction relief where he was incarcerated in Federal prison and allegedly deprived of access to Florida legal materials or (2) whether he was represented by counsel at sentencing and/or during the two-year statutory period for pursuing post-conviction relief, or (3) for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief. See Ballester v. State, 781 So.2d 503 (Fla. 3d DCA 2001); Descally v. State, 792 So.2d 1222 (Fla. 3d DCA 2001).

Reversed and remanded for further proceedings.

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FLETCHER, Judge.

William Dejesus Balvin appeals from an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. [13]*13On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. Crim P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing to determine (1) whether the defendant may belatedly petition for post-conviction relief where he was incarcerated in Federal prison and allegedly deprived of access to Florida legal materials or (2) whether he was represented by counsel at sentencing and/or during the two-year statutory period for pursuing post-conviction relief, or (3) for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief. See Ballester v. State, 781 So.2d 503 (Fla. 3d DCA 2001); Descally v. State, 792 So.2d 1222 (Fla. 3d DCA 2001).

Reversed and remanded for further proceedings.

Balvin v. State, 921 So. 2d 12, 2006 Fla. App. LEXIS 14, 2006 WL 14307 (Fla. Ct. App. 2006).

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