From Casetext: Smarter Legal Research

Calhoun v. State

District Court of Appeal of Florida, First District
Sep 29, 1978
362 So. 2d 726 (Fla. Dist. Ct. App. 1978)

Opinion

No. JJ-75.

September 29, 1978.

Appeal from the Circuit Court for Volusia County, Uriel Blount, Jr., J.

Levi Calhoun, in pro per.

Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.


This is an appeal from a denial of a motion to vacate a judgment and sentence after a conviction of attempted robbery and in the course of committing the robbery carrying a firearm. The trial judge denied the motion without an evidentiary hearing. The order issued by the court asserted that the records and files refuted the claims of the defendant, but no portion of the record or file was attached to the order.

Rule 3.850, Fla.R.Crim.P. requires that when 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 should be granted. Accordingly, this case is reversed and remanded with instructions for the trial court to attach that portion of the case file and record which refutes appellant's allegations or to conduct an evidentiary hearing.

McCORD, C.J., and BOYER and MILLS, JJ., concur.


Summaries of

Calhoun v. State

District Court of Appeal of Florida, First District
Sep 29, 1978
362 So. 2d 726 (Fla. Dist. Ct. App. 1978)
Case details for

Calhoun v. State

Case Details

Full title:LEVI CALHOUN, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, First District

Date published: Sep 29, 1978

Citations

362 So. 2d 726 (Fla. Dist. Ct. App. 1978)

Citing Cases

Williams v. State

This appeal is from that order. Appellant correctly asserts that the trial court erred in denying his motion…

Rudolph v. State

We reverse and remand. Rule 3.850 requires that in those instances where the denial of a motion for…