Gilmore v. State

586 So. 2d 510, 1991 Fla. App. LEXIS 13944, 1991 WL 196305

Opinion

PER CURIAM.

This is an appeal from the summary denial of appellant’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Although the motion is facially sufficient, see Netherly v. State, 508 So.2d 524 (Fla. 2d DCA 1987), the trial judge failed to attach to his order any portion of the files or record to refute appellant’s allegations.

Accordingly, we reverse the order denying appellant’s motion and remand the case to the trial court. On remand, unless the case files and records conclusively show that appellant is not entitled to relief, the trial court shall order the state to file an answer. After receipt of the answer, the trial court shall determine whether an evi-dentiary hearing is required. If the trial court should summarily deny the motion again, it shall attach such portions of the record which conclusively refute appellant’s allegations. Any party aggrieved by the subsequent action of the trial court must file a notice of appeal within thirty days to obtain appellate review.

RYDER, Acting C.J., and DANAHY and PATTERSON, JJ., concur.