Hyer v. State

501 So. 2d 189, 12 Fla. L. Weekly 412, 1987 Fla. App. LEXIS 6535

Opinion

PER CURIAM.

Rex Hyer appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.

Appellant asserts that his trial counsel was ineffective by failing to advise him that he was entitled to elect guidelines sentencing. This allegation presents a factual issue that is not resolved by the attachments to the order summarily denying the motion. See Wright v. State, 492 So.2d 394 (Fla. 1st DCA 1986); Buford v. State, 496 So.2d 158 (Fla. 4th DCA 1986); Hendrix v. State, 491 So.2d 1172 (Fla. 5th DCA 1986). The remaining contentions of appellant are without merit.

Accordingly, we reverse and remand to the trial court for further proceedings consistent with rule 3.850. Any party aggrieved by the subsequent action of the trial court must file a notice of appeal within thirty days to obtain appellate review.

CAMPBELL, A.C.J., and SCHOONOVER and LEHAN, JJ., concur.