Benton v. State

401 So.2d 1114 (1981)

Robert Lewis BENTON, Appellant,
v.
STATE of Florida, Appellee.

No. 81-135.

District Court of Appeal of Florida, Fifth District.

April 1, 1981.

Robert Lewis Benton, pro se, Clermont.

Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.

SHARP, Judge.

Benton appeals a summary order denying him collateral relief which he sought pursuant to Florida Rule of Criminal Procedure 3.850. Rule 3.850 requires the trial judge to either hold an evidentiary hearing to determine if relief should be granted or if the case file and record conclusively show the petitioner is entitled to no relief, then to deny relief in an order specifically setting out the reasons for the denial and attaching the appropriate portions of the case file and record which show he is not entitled to any relief. Neither was done in this case. Because the record before us does not conclusively show that Benton is entitled to no relief, we relinquish jurisdiction for 30 days and remand for an evidentiary hearing or if appropriate, for the attachment of those portions of the record which show appellant is entitled to no relief. Fla.R.App.P. 9.140(g); Rice v. State, 400 So.2d 461 (Fla. 5th DCA 1980); Gunter v. State, 380 So.2d 1198 (Fla. 5th DCA 1980).

REVERSED and REMANDED for further proceedings.

ORFINGER and COBB, JJ., concur.

Appeal after remand, Fla.App., 401 So.2d 1114.