Bartley v. State

462 So. 2d 885, 10 Fla. L. Weekly 291, 1985 Fla. App. LEXIS 12080

Opinion

SCHEB, Acting Chief Judge.

This appeal is from the trial court’s summary denial of a motion seeking post-conviction relief under Florida Rule of Criminal Procedure 3.850.

Defendant pled nolo contendere to charges of robbery and possession of a firearm in the commission of a felony. He was sentenced to two concurrent five-year terms of imprisonment. He alleges that his plea was unlawfully induced or not made voluntarily with an understanding of the consequences of his plea. The supporting facts in his motion allege that the terms of his plea bargain were not complied with. Defendant’s allegation, if true, would entitle him to relief. The trial court, however, failed to conduct an evidentiary hearing or attach relevant portions of the record which refute the allegation as required by rule 3.850.

Accordingly, we reverse the trial court's denial of defendant’s motion and remand the case to the trial court. On remand the trial court may either again summarily deny the motion and attach to its order those portions of the record which conclusively refute defendant’s allegation or hold an evidentiary hearing and then rule on defendant’s motion. See Fla.R. Crim.P. 3.850. See also Gurchick v. State, 428 So.2d 738 (Fla. 2d DCA 1983); Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982). To obtain further review defendant must appeal the new ruling of the trial court.

LEHAN and FRANK, JJ., concur.