Holmes v. State

646 So. 2d 260, 1994 Fla. App. LEXIS 11351, 1994 WL 657868

Opinion

ON MOTION FOR REHEARING

PER CURIAM.

We grant defendant’s motion for rehearing, withdraw the opinion dated October 5, 1994, and substitute the following opinion. Defendant appeals an order summarily denying his Rule 3.850 motion. Defendant correctly asserts that the trial court erred in denying the motion on its face. The portion of the record attached to the order fails to refute defendant’s claim that he was physically unable to surrender timely for sentencing. See Clark v. State, 620 So.2d 1137 (Fla. 3d DCA 1993). Therefore, defendant is entitled to an evidentiary hearing to establish that his failure to report following furlough was justifiable or excusable thus rendering his violation of the furlough agreement involuntary. Jackson v. State, 639 So.2d 1119, 1120 (Fla. 3d DCA 1994). Accordingly, we reverse the order and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded.