WENCESLAO MANUEL LORA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in denying post-conviction relief without a hearing and in failing to attach records demonstrating entitlement to no relief.
Appellant sought post-conviction relief, but the trial court denied his motion, finding he was not a 'prisoner in custody' and summarily denying relie…
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PER CURIAM.
Wenceslao Manuel Lora appeals the trial court’s final order, dated January 26, 1989, denying his motion for post conviction relief. Appellant did not file his notice of appeal until March 3, 1989. This court, upon appellant’s petition for habeas corpus, granted belated appellate review and considered the petition as a notice of appeal. We reverse.
As a preliminary matter, we find that the trial court erred in concluding that appellant was not a “prisoner in custody” for Florida Rule of Criminal Procedure 3.850 purposes and therefore lacked standing to challenge his sentence of community control and probation. State v. Bolyea, 520 So. 2d 562 (Fla.1988).
Moreover, we find that the trial court erred in summarily denying appellant's motion for post conviction relief without a hearing. In the alternative, where the trial judge’s denial was not predicated on the legal sufficiency of the allegations, it was incumbent upon the trial court to attach those portions of the files and records which conclusively demonstrate that appellant is entitled to no relief. Harden v. State, 528 So. 2d 544 (Fla. 1st DCA 1988). This, the trial court failed to do. Accordingly, we reverse and remand with instructions to the trial court to comply with the requirements of Florida Rule of Criminal Procedure 3.850.
Our disposition of appellant’s points I and V renders premature any consideration of appellant’s remaining points, pending outcome of the 3.850 proceedings below.
ANSTEAD, GLICKSTEIN and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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German v. State, 596 So. 2d 509 (Fla. 1st DCA 1992)…s and records which conclusively demonstrate the prisoner is entitled to no relief. Fla. R.Crim.P. 3.850; Harden v. State, 528 So. 2d 544, 545 (Fla. 1st DCA 1988). See also Robinson v. State, 549 So. 2d 1181, 1182 (Fla. 1st DCA 1989); Lora v. State, 565 So. 2d 416 (Fla. 4th DCA 1990). Some of the allegations raised by appellant in this case indicate a possible entitlement to relief, if the allegations can be established. Indeed, the trial court recognized the legal sufficiency of some of the allegations whe…
Authorities Cited
- State v. Bolyea, 520 So. 2d 562 (Fla. 1988)
- Harden v. State, 528 So. 2d 544 (Fla. 1st DCA 1988)