Hurley v. State

779 So. 2d 608, 2001 Fla. App. LEXIS 2126, 2001 WL 193735

Opinion

BARFIELD, C.J.

The trial court’s order summarily denying the appellant’s motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 does not address any of the claims of ineffective assistance of counsel raised in the motion, and appears to address a sentencing issue that was not raised in the motion. The appellant’s motion for rehearing, which asserted in part that the order’s reference to a sentence challenge not mentioned in the motion indicated it was possible the court did not review the motion, was summarily denied without explanation. The state’s response to this court’s recent order requiring it to specifically address the grounds stated in the motion and in the motion for rehearing, under Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986), was both impertinent and unresponsive to the issues raised in the appellant’s motion, which included the claim that his trial attorney refused his request to file a motion to withdraw his plea.

The state’s response is therefore STRICKEN, the trial court’s orders are REVERSED, and the case is REMANDED to the trial court for entry of an order which addresses the post-conviction motion before it.

ALLEN and BROWNING, JJ„ concur.