McDole v. State

District Court of Appeal of Florida

McDole v. State

46 So. 3d 1154, 2010 Fla. App. LEXIS 16610, 2010 WL 4292197

CourtDistrict Court of Appeal of Florida

DecidedNovember 2, 2010

Docket1D10-2376

StatusPublished

Cited by2 cases

This text of 46 So. 3d 1154 (McDole 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

McDole v. State, 46 So. 3d 1154, 2010 Fla. App. LEXIS 16610, 2010 WL 4292197 (Fla. Ct. App. 2010).

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Opinions

PER CURIAM.

After reviewing the state’s response to this Court’s show cause order, we conclude that the appellant’s rule 3.853 motion is facially sufficient. See Fla. R.Crim. P. [1155]*11553.853; § 925.11(l)(a)2.; (2)(a)l.-6., Fla. Stat. (2009). Thus, the trial court should have reviewed the merits of the appellant’s claim and either attached records conclusively refuting his assertions, or held a hearing on the motion. It is of no matter that the appellant entered a plea to the charges. See Glenn v. State, 954 So.2d 732 (Fla. 1st DCA 2007) (stating that the 2006 amendment to section 925.11, which governs post-conviction DNA testing, permits defendants who have pled guilty or nolo contendere to file rule 3.853 motions). We therefore direct the lower court to consider the merits of the instant motion and address its claims.

REVERSED AND REMANDED.

BENTON and ROWE, JJ., concur; THOMAS, J., concurs with opinion.

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PER CURIAM.

After reviewing the state’s response to this Court’s show cause order, we conclude that the appellant’s rule 3.853 motion is facially sufficient. See Fla. R.Crim. P. [1155]*11553.853; § 925.11(l)(a)2.; (2)(a)l.-6., Fla. Stat. (2009). Thus, the trial court should have reviewed the merits of the appellant’s claim and either attached records conclusively refuting his assertions, or held a hearing on the motion. It is of no matter that the appellant entered a plea to the charges. See Glenn v. State, 954 So.2d 732 (Fla. 1st DCA 2007) (stating that the 2006 amendment to section 925.11, which governs post-conviction DNA testing, permits defendants who have pled guilty or nolo contendere to file rule 3.853 motions). We therefore direct the lower court to consider the merits of the instant motion and address its claims.

REVERSED AND REMANDED.

BENTON and ROWE, JJ., concur; THOMAS, J., concurs with opinion.

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Bluebook (online)

46 So. 3d 1154, 2010 Fla. App. LEXIS 16610, 2010 WL 4292197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdole-v-state-fladistctapp-2010.

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