Washington v. State , 442 So. 2d 382 ( 1983 )

442 So.2d 382 (1983)

Horace WASHINGTON, Appellant,
v.
STATE of Florida, Appellee.

No. 83-2023.

District Court of Appeal of Florida, Second District.

December 9, 1983.

PER CURIAM.

Appellant seeks review of the trial court's order summarily denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Appellant's singular point in his motion alleges that he received an illegal enhanced sentence because the trial court used several prior uncounseled convictions. If this allegation is true, appellant would be entitled to postconviction relief. Johnson v. State, 362 So.2d 465 (Fla. 2d DCA 1978). The trial court, however, failed to conduct an evidentiary hearing or to attach portions of the record which conclusively refute appellant's allegation.

Accordingly, we reverse the trial court's denial of appellant's motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion, and attach to its order those portions of the record which conclusively show that appellant is not entitled to relief, or hold an evidentiary hearing and then rule on the allegation raised in appellant's motion. See Florida Rule of Criminal Procedure 3.850. See also Halpin v. State, 428 So.2d 703 (Fla. 2d DCA 1983); Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982); Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981). To obtain further review in this cause, an aggrieved party must appeal the new ruling of the trial court.

REVERSED and REMANDED.

OTT, C.J., and BOARDMAN and DANAHY, JJ., concur.