Parker v. State

700 So. 2d 390, 1997 Fla. App. LEXIS 8604, 1997 WL 423081

Opinion

PER CURIAM.

The appellant challenges the order by which the trial court summarily denied his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. The motion set forth a claim for relief under Ashley v. State, 614 So.2d 486 (Fla.1993), and State v. Wilson, 658 So.2d 521 (Fla.1995), but the trial court denied the motion as successive. No prior motion under rule 3.850 and no order in response to any such motion was attached to the order under review, and the appellant’s motion did not acknowledge that he had filed an earlier motion under rule 3.850. Without such attachments or admissions, the appellant’s claim was not conclusively refuted. The order is therefore reversed and this case is remanded to the trial court. Upon remand, the trial court should hold an evidentiary hearing or attach to its order of denial the portions of the record showing conclusively that the appellant is not entitled to relief. See Fla. R.Crim. P. 3.850(d).

MINER, ALLEN and MICKLE, JJ., concur.