Cunningham v. State

472 So. 2d 899, 10 Fla. L. Weekly 1818, 1985 Fla. App. LEXIS 14427

Opinion

PER CURIAM.

This appeal is from the summary denial of a motion seeking post-conviction relief under Florida Rule of Criminal Procedure 3.850. Appellant raised two points in the motion. The allegation in point II, that he was not given credit for time served, if true, would entitle appellant to relief. However, the trial court failed to either conduct an evidentiary hearing or attack the pertinent portions of the record to refute that allegation.

Accordingly, we affirm the trial court’s denial of appellant’s motion regarding ground one. We reverse the trial court’s denial of appellant’s motion on ground two and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion as to the allegation in point II and attach to its order those portions of the record which are pertinent and conclusively show that appellant is not entitled to relief, or hold an eviden-tiary hearing and then rule on the ground alleged in the motion. See Fla.R.Crim.P. 3.850. See also Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982) and VanBever v. State, 405 So.2d 474 (Fla. 5th DCA 1981). To obtain further review, any aggrieved party must appeal the new ruling of the trial court.

Affirmed in part, reversed in part and remanded with instructions.

DANAHY, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.