Wilson v. State

597 So. 2d 974, 1992 Fla. App. LEXIS 5046, 1992 WL 98801

Opinion

PER CURIAM.

Appellant seeks review of the trial court’s order summarily denying his rule 3.850 motion for post-conviction relief as legally insufficient.

The state urges affirmance, relying on Duggan v. State, 588 So.2d 1054 (Fla. 1st DCA 1991), and Shaffner v. State, 562 So.2d 430 (Fla. 1st DCA 1990). We find those cases distinguishable, however, because here, the allegations in appellant’s 3.850 motion are tantamount to a statement that he would not have entered a plea of guilty but for his attorney’s ineffective assistance.

We conclude that the 3.850 motion is legally sufficient. See Rackley v. State, 571 So.2d 533 (Fla. 1st DCA 1990); Netherly v. State, 508 So.2d 524 (Fla. 2d DCA 1987). Accordingly, we reverse and remand for an evidentiary hearing or for attachment of portions of the record conclusively showing that appellant is not entitled to relief.

REVERSED AND REMANDED for further proceedings consistent herewith.

ANSTEAD, GUNTHER and FARMER, JJ., concur.