Hampton v. State

SHIVERS, Judge.

On December 12, 1985, Appellant Hampton filed a motion pursuant to Rule 3.850, Fla.R.Crim.P., in which he asserted five grounds for post-conviction relief. The trial court summarily denied the motion, stating that Hampton had raised the same grounds in a previous motion for post-conviction relief, and that the previous motion had been denied by the trial court in 1981 and per curiam affirmed by this court in 1982. Appellant asserted, by way of an affidavit attached to a motion for rehearing, that he did not recall filing a previous motion for post-conviction relief.

Rule 3.850 provides that a second or successive motion for post-conviction relief may be dismissed if the trial court finds that it fails to allege any new or different grounds for relief and the prior determination was on the merits. Since we are unable to determine from the order of denial whether the instant motion raises the same issues as does the previous motion or whether the previous motion was denied on the merits, we reverse and remand for the trial court to attach that portion of the files and records which conclusively shows that appellant is entitled to no relief.

SMITH and ZEHMER, JJ., concur.