Opinion
No. BE-273.
June 27, 1985.
Appeal from the Circuit Court for Duval County, Clifford B. Shepard, J.
Frank Lee Anderson, pro se.
Jim Smith, Atty. Gen., Tallahassee, for appellee.
Frank Lee Anderson appeals the trial court's summary denial of his motion for post-conviction relief. The first of the trial court's grounds for summary denial of the motion, that all of the issues raised in the motion could have been raised in a prior 3.850 motion filed three months before, is clearly in error. As to the court's second ground for summary denial of the motion, that appellant's claim of ineffective assistance of counsel "is without merit," although this finding may be supported by the record, the trial court's order is unaccompanied by any attachments demonstrating the correctness of the finding.
The cause is therefore remanded to the trial court for an evidentiary hearing, for attachment of those portions of the record conclusively showing that appellant is entitled to no relief, or, if the record has been destroyed, for a determination by the trial judge of whether the state has been prejudiced to the extent that application of the doctrine of laches should be applied to bar appellant's motion for post-conviction relief. Frazier v. State, 447 So.2d 959 (Fla. 1st DCA 1984); Remp v. State, 248 So.2d 677 (Fla. 1st DCA 1970).
BOOTH and WIGGINTON, JJ., concur.