Cruller v. State

947 So. 2d 575, 2007 Fla. App. LEXIS 32, 2007 WL 5789

Opinion

PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On 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.App. 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 further proceedings.

The trial court denied the Rule 3.800 motion based upon the State’s response which asserted the defendant had a prior conviction for robbery that served as the qualifying offense for sentencing him as a Habitual Violent Felony Offender. However, the underlying conviction was not attached to the State’s response, nor was it attached to the trial court’s order. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.

SCHWARTZ, Senior Judge, concurs in result.