Raines v. State

579 So. 2d 905, 1991 Fla. App. LEXIS 4987, 1991 WL 90286

Opinion

PER CURIAM.

This is an appeal from the summary denial of appellant’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant claims he received an improper guideline departure sentence and his attorney made various promises to him regarding his sentence and gain time. Although the trial judge relied on a plea agreement in denying the motion, he did not attach to his order the plea agreement, the plea hearing transcript or any other portion of the files or record to refute appellant’s allegations.

Accordingly, we reverse the order denying appellant’s motion and remand the case to the trial court. On remand, unless the case files and records conclusively show that appellant is not entitled to relief, the trial court shall order the state to file an answer. After receipt of the answer, the trial court shall determine whether an evi-dentiary hearing is required. If the trial court should summarily deny the' motion again, it shall attach such portions of the record which conclusively refute appellant’s allegations. Any party aggrieved by the subsequent action of the trial court must file a notice of appeal within thirty days to obtain appellate review.

SCHOONOVER, C.J., and FRANK and PATTERSON, JJ., concur.