Not overruled or negatively treated on appealinfoCoverage
District Court of Appeal of Florida, First DistrictSep 26, 1984
456 So. 2d 1276 (Fla. Dist. Ct. App. 1984)

No. AY-69.

September 26, 1984.

Appeal from the Circuit Court, Leon County, Charles E. Miner, Jr., J.

Aaron Woodward, pro se, for appellant.

No appearance for appellee.

This is an appeal from the denial of appellant's motion filed under rule 3.850, Florida Rules of Criminal Procedure.

In 1976, appellant filed a 3.850 motion to vacate his sentence, which was denied and affirmed without opinion on appeal, 345 So.2d 432 (Fla. 1st DCA 1977). The instant motion, being the second motion filed by appellant, was summarily denied on the grounds that a trial court is not required to hear a second motion filed pursuant to rule 3.850 and "Petitioner, having already had an opportunity to file a Rule 3.850 Motion and to have the denial of said Motion reviewed on appeal, is now entitled to no relief."

Pursuant to our order issued June 13, 1984, the trial court has supplemented the record on appeal with the previous motion and order of denial. These documents reveal that the 1976 motion attacked the propriety of the sentence imposed under section 813.011, Florida Statutes. The present motion seeks relief on grounds that appellant was deprived of the effective assistance of counsel. Since the instant motion asserts a completely different ground, the appealed order must be reversed and the case remanded to the trial court for consideration on the merits. McCrae v. State, 437 So.2d 1388 (Fla. 1983).

We remand with directions that the trial court pass on the sufficiency of the grounds alleged in the motion and, if deemed necessary, attach portions of the record showing no right to relief, or hold an evidentiary hearing.


SMITH and JOANOS, JJ., concur.