Heath v. State

443 So. 2d 496, 1984 Fla. App. LEXIS 11306

Opinion

LEHAN, Judge.

Appellant seeks review of the trial court’s order summarily denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Appellant raised three points in his motion. The allegation that appellant was on medication at the time of pleading nolo contendere and thus was unable to understand the proceedings, if true, might entitle appellant to post-conviction relief. The trial court, however, failed to conduct an evidentiary hearing or to attach portions of the record which would conclusively refute appellant’s allegations.

Accordingly, we reverse the trial court’s denial of appellant’s motion and remand. The trial court may either summarily deny the motion, attaching a copy of the record which conclusively shows that appellant is not entitled to relief, or hold an evidentiary hearing and rule on the merits of the motion. See Fla.R.Crim.P. 3.580. See also Halpin v. State, 428 So.2d 703 (Fla. 2d DCA 1983); Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982); Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981).

REVERSED AND REMANDED.

OTT, C.J., and BOARDMAN, J., concur.