Ross v. State

570 So. 2d 1120, 1990 Fla. App. LEXIS 9177, 1990 WL 195839

Opinion

PER CURIAM.

Darion Ross appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s denial of the motion except on the appellant’s claim that his attorney was ineffective for not investigating and calling as an alibi witness the appellant’s brother-in-law. The portion of the record provided to us does not adequately refute the appellant’s allegations.

Accordingly, we reverse in part the trial court’s denial of appellant’s motion and remand the case to the trial court. On remand, unless the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall order the state attorney to file an answer within a time certain. After receipt of the answer, the court shall determine whether an evidentiary hearing is required. If the court should again deny appellant’s motion, he has thirty days in which to appeal.

Affirmed in part, reversed in part and remanded.

CAMPBELL, A.C.J., and HALL and THREADGILL, JJ., concur.