Mills v. State

625 So. 2d 970, 1993 Fla. App. LEXIS 10690, 1993 WL 424209

Opinion

PER CURIAM.

Gregory Mills appeals the summary denial of his motion for posteonviction relief. We reverse.

In his motion for postconviction relief, Mills claims that he could not be sentenced as a habitual offender upon revocation of community control because at the time he entered his plea for the underlying offense, the state did not file notice of intent to seek a habitualized sentence and he was sentenced pursuant to the guidelines for the underlying offense. If Mills’ claim is true, he is entitled to relief. See Snead v. State, 616 So.2d 964 (Fla.1993). Because the order of denial and attachments do not adequately refute Mills’ claim, we reverse and remand for further proceedings.

On remand the trial court may again summarily deny Mills’ motion and attach those portions of the record refuting his claim or hold an evidentiary hearing.

Reversed.

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