Estrella v. State

215 So. 2d 489, 1968 Fla. App. LEXIS 4826

Opinion

' PER CURIAM.

This appeal is from an order denying the petition of Francis Lester Estrella for relief pusuant to Rule One, now Rule 1.850, Criminal Procedure Rules, 33 F.S.A.

Estrella filed his Rule One petition of some thirteen pages, claiming that his convictions were the result of (1) a coerced confession, (2) failure to appoint counsel prior to his preliminary hearing and (3) the inadequacy of subsequently appointed counsel.

At the hearing on his motion the following events took place:

“THE COURT: Francis Lester Es-trella.

Attorney: It states he did not have Counsel at the preliminary hearing.

THE COURT: He had Counsel at the time of Trial. I will deny it. It states no grounds. (Thereupon the hearing was concluded.)”

Although Estrella pleaded guilty and was represented at trial by the Public Defender, a review of his Rule One motion, the files, and record an appeal do not conclusively show that he was not entitled to an evidentiary hearing in this cause. They come close to a conclusive showing but in a borderline case such as here the petitioner should be granted an evidentiary hearing to support any proper allegations contained in his petition.

Accordingly, this cause is reversed and remanded for further hearing consistent herewith.