Rudolph v. State

District Court of Appeal of Florida

Rudolph v. State

508 So. 2d 363, 12 Fla. L. Weekly 901, 1987 Fla. App. LEXIS 6645

District Court of Appeal of Florida·Decided February 4, 1987·No. No. BO-92·Published·Cited by 1 cases

Opinions

MILLS, Judge.

Rudolph appeals from an order denying him post-conviction relief sought pursuant to Florida Rules of Criminal Procedure 3.850. We reverse and remand.

Rule 3.850 requires that in those instances where the denial of a motion for post-conviction relief is not based on the legal insufficiency of the motion, “a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief shall be attached to the order,” or an evidentiary hearing be granted. Calhoun v. State, 362 So.2d 726 (Fla. 1st DCA 1978). Neither action was taken by the court below. Accordingly, we remand this case to the trial court with instructions to (1) attach those portions of the case file and record which refute the appellant’s allegations, or (2) conduct an evidentiary hearing and, then, either grant or deny the relief sought by the appellant. Payne v. State, 362 So.2d 688 (Fla. 2d DCA 1978); Cookish v. State, 416 So.2d 53 (Fla. 4th DCA 1982).

Reversed and remanded with directions.

BOOTH, C.J., and THOMPSON, J., concur.

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MILLS, Judge.

Rudolph appeals from an order denying him post-conviction relief sought pursuant to Florida Rules of Criminal Procedure 3.850. We reverse and remand.

Rule 3.850 requires that in those instances where the denial of a motion for post-conviction relief is not based on the legal insufficiency of the motion, “a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief shall be attached to the order,” or an evidentiary hearing be granted. Calhoun v. State, 362 So.2d 726 (Fla. 1st DCA 1978). Neither action was taken by the court below. Accordingly, we remand this case to the trial court with instructions to (1) attach those portions of the case file and record which refute the appellant’s allegations, or (2) conduct an evidentiary hearing and, then, either grant or deny the relief sought by the appellant. Payne v. State, 362 So.2d 688 (Fla. 2d DCA 1978); Cookish v. State, 416 So.2d 53 (Fla. 4th DCA 1982).

Reversed and remanded with directions.

BOOTH, C.J., and THOMPSON, J., concur.

Rudolph v. State, 508 So. 2d 363, 12 Fla. L. Weekly 901, 1987 Fla. App. LEXIS 6645 (Fla. Ct. App. 1987).

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