Lay v. State

District Court of Appeal of Florida

Lay v. State

224 So. 2d 369, 1969 Fla. App. LEXIS 5508

District Court of Appeal of Florida·Decided June 30, 1969·No. No. 2589·Published·Cited by 2 cases

Opinion

PER CURIAM.

This is an appeal from an order of denial of a motion by Harlan Glen Lay pursuant to Rule 1.850, Rules of Criminal Procedure, 33 F.S.A.

Lay alleges, among other things, that he was not represented in good faith by the public defender; that the public defender’s representation was insufficient, inadequate and incompetent in that he failed to prepare, investigate and inform petitioner about his case; the public defender failed to inform Lay about the legal effect of defense available; that the public defender prevailed upon the appellant to enter a plea of nolo contendere. Accordingly, Lay maintains his conviction and sentence should be set aside.

No evidentiary hearing was granted on Lay’s motion. Lay’s allegations were not refuted by the state. Inconsistent with Rule 1.850, F.S.A. the trial court erred in not granting an evidentiary hearing on this motion. Estrella v. State, Fla.App.1968, 215 So.2d489; Bush v. State, Fla.App.1968, 209 So.2d 696; Bennett v State, Fla.App. 1967, 203 So.2d 211.

This cause is reversed and remanded for complete and prompt evidentiary hearing.

WALDEN, C. J., and McCAIN and REED, JJ., concur.

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PER CURIAM.

This is an appeal from an order of denial of a motion by Harlan Glen Lay pursuant to Rule 1.850, Rules of Criminal Procedure, 33 F.S.A.

Lay alleges, among other things, that he was not represented in good faith by the public defender; that the public defender’s representation was insufficient, inadequate and incompetent in that he failed to prepare, investigate and inform petitioner about his case; the public defender failed to inform Lay about the legal effect of defense available; that the public defender prevailed upon the appellant to enter a plea of nolo contendere. Accordingly, Lay maintains his conviction and sentence should be set aside.

No evidentiary hearing was granted on Lay’s motion. Lay’s allegations were not refuted by the state. Inconsistent with Rule 1.850, F.S.A. the trial court erred in not granting an evidentiary hearing on this motion. Estrella v. State, Fla.App.1968, 215 So.2d489; Bush v. State, Fla.App.1968, 209 So.2d 696; Bennett v State, Fla.App. 1967, 203 So.2d 211.

This cause is reversed and remanded for complete and prompt evidentiary hearing.

WALDEN, C. J., and McCAIN and REED, JJ., concur.

Lay v. State, 224 So. 2d 369, 1969 Fla. App. LEXIS 5508 (Fla. Ct. App. 1969).

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