Pettway v. State

502 So. 2d 1353, 12 Fla. L. Weekly 646

• Court: District Court of Appeal of Florida
• Decided: February 25, 1987
• Docket: 87-356
• Status: Published

Opinion

502 So.2d 1353 (1987)

John E. PETTWAY, Appellant,
v.
STATE of Florida, Appellee.

No. 87-356.

District Court of Appeal of Florida, Second District.

February 25, 1987.

PER CURIAM.

John Pettway appeals from the summary denial of his motion for postconviction relief.

Pettway is currently serving a nine-year prison sentence, apparently a guideline sentence. He claims that this sentence was artificially enhanced by the effect upon his scoresheet calculation of several uncounseled convictions, and that trial counsel knew of this inaccuracy but failed to object. If this allegation is true Pettway might be entitled to relief. Lanier v. State 478 So.2d 1184 (Fla. 2d DCA 1985); Pilla v. State, 477 So.2d 1088 (Fla. 4th DCA 1985). The trial court's order states that the files and records in the case support denial of the motion, but the court did not attach copies of these records as is required by Florida Rule of Criminal Procedure 3.850.

Pettway also alleges that his plea of nolo contendere was "coerced". This allegation is facially insufficient and the trial court properly denied relief on this ground.

Upon remand the trial court may again deny the motion, but should include whatever exhibits or other evidence it relied upon in support of that denial. In the event the court chooses this alternative Pettway must file a notice of appeal within thirty days to obtain further appellate review. If, on the other hand, the trial court cannot substantiate denial of the motion by reference to the record, it should direct the state attorney to file an answer to the motion.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

RYDER, A.C.J., and FRANK and HALL, JJ., concur.