McCray v. State

578 So. 2d 875, 1991 Fla. App. LEXIS 3966, 1991 WL 68900

Opinion

PER CURIAM.

Charles McCray appeals the summary denial of his motion for postconviction relief. We affirm in part and reverse in part.

All of the issues presented in the motion relate to the trial court’s decision to sentence McCray as a habitual felony offender. § 775.084, Fla.Stat. (1988 Supp.). Most of McCray’s arguments are without merit, or should have been raised (if at all) on direct appeal. However, we are compelled to remand this case for further proceedings regarding one issue. McCray alleges that the enhanced sentence was imposed without prior notice, and that he was unaware of the possibility of enhancement when deciding to enter his plea of nolo contendere. The trial court failed to attach to its order any documentation refuting this claim.

If McCray’s allegations are true he may be entitled to a new sentencing hearing or to withdraw his plea. See Johnson v. State, 577 So.2d 725 (Fla. 2d DCA 1991). After remand the trial court should re-examine the files and records to determine whether anything therein conclusively refutes this portion of McCray’s motion. If not, an evidentiary hearing will be necessary.

Affirmed in part, reversed in part, and remanded with instructions.

HALL, A.C.J., and THREADGILL and PATTERSON, JJ., concur.