Williams v. State

455 So. 2d 1159, 9 Fla. L. Weekly 2034, 1984 Fla. App. LEXIS 15056

Opinion

SCHOONOVER, Judge.

Leroy Williams appeals the trial court’s summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850.

Appellant’s allegation that he was improperly convicted of third degree murder, if true, might entitle appellant to relief. The trial court, however, failed to conduct an evidentiary hearing or to attach portions of the record that refute this allegation. We, therefore, reverse the trial court’s order and remand the case. The trial court may either again summarily deny the motion and attach to its order those portions of the record that conclusively show appellant is not entitled to relief, or hold an evidentiary hearing and then rule on the ground alleged in the motion. See Fla.R.Crim.P. 3.850; see also, Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982); Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981).

REVERSED.

BOARDMAN, A.C.J., and LEHAN, J., concur.