Guerrero v. State

496 So. 2d 885, 11 Fla. L. Weekly 2221, 1986 Fla. App. LEXIS 10195

Opinion

PER CURIAM.

Bienvenido Guerrero appeals the summary denial of his motion for post-conviction relief.

Appellant alleges that he was denied effective assistance of counsel because his lawyer failed to do certain matters prior to appellant’s trial and forced appellant to testify at trial. Attached to the order denying the motion is a transcript of the appellant’s trial. The matters of which appellant complains are outside of the record of the trial and are not refuted by the trial transcript.

Accordingly, we reverse the trial court’s denial of appellant’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 show that appellant is not entitled to relief or hold an evidentiary hearing and then rule on the allegations raised in appellant’s motion. To obtain further review in this cause, either aggrieved party must appeal the new ruling of the trial court.

DANAHY, C.J., and GRIMES and SCHEB, JJ., concur.