Hyder v. State

District Court of Appeal of Florida

Hyder v. State

526 So. 2d 780, 13 Fla. L. Weekly 1434, 1988 Fla. App. LEXIS 2523, 1988 WL 60480

CourtDistrict Court of Appeal of Florida

DecidedJune 17, 1988

DocketNo. 88-1390

StatusPublished

Cited by2 cases

This text of 526 So. 2d 780 (Hyder v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hyder v. State, 526 So. 2d 780, 13 Fla. L. Weekly 1434, 1988 Fla. App. LEXIS 2523, 1988 WL 60480 (Fla. Ct. App. 1988).

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Opinion

PER CURIAM.

Appellant seeks review of the trial court’s summary denial of his motion to correct an illegal sentence. Appellant alleged in his motion that his sentence is illegal because it was enhanced, at least in part, on the basis of a prior uncounseled conviction. If this allegation is true, then appellant may be entitled to relief. See United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Washington v. State, 442 So.2d 382 (Fla. 2d DCA 1983); Lloyd v. State, 346 So.2d 1075 (Fla. 2d DCA 1977). The trial court, however, failed to attach portions of the record which conclusively refute appellant’s allegations.

Accordingly, we reverse the summary denial of 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 evidentiary 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. Appellant will have thirty days in which to appeal.

DANAHY, C.J., and FRANK and PARKER, JJ., concur.

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PER CURIAM.

Appellant seeks review of the trial court’s summary denial of his motion to correct an illegal sentence. Appellant alleged in his motion that his sentence is illegal because it was enhanced, at least in part, on the basis of a prior uncounseled conviction. If this allegation is true, then appellant may be entitled to relief. See United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Washington v. State, 442 So.2d 382 (Fla. 2d DCA 1983); Lloyd v. State, 346 So.2d 1075 (Fla. 2d DCA 1977). The trial court, however, failed to attach portions of the record which conclusively refute appellant’s allegations.

Accordingly, we reverse the summary denial of 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 evidentiary 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. Appellant will have thirty days in which to appeal.

DANAHY, C.J., and FRANK and PARKER, JJ., concur.

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Bluebook (online)

526 So. 2d 780, 13 Fla. L. Weekly 1434, 1988 Fla. App. LEXIS 2523, 1988 WL 60480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hyder-v-state-fladistctapp-1988.

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