Calhoun v. State

362 So. 2d 726 (1978)

Levi CALHOUN, Appellant,
v.
STATE of Florida, Appellee.

No. JJ-75.

District Court of Appeal of Florida, First District.

September 29, 1978.

Levi Calhoun, in pro per.

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

PER CURIAM.

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.