Opinion
No. AM-25.
September 10, 1982.
Appeal from the Circuit Court, Duval County, A.C. Soud, Jr., J.
Danny Haines McCorkle, pro se.
No appearance for appellee.
Appellant appeals the denial of his motion for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The motion contained allegations which, if true, constitute grounds for relief under the rule. In denying the motion, the trial judge relied on an affidavit submitted by the attorney who had represented appellant at the time of his conviction and sentence. Although the affidavit contained information which indicated that appellant was not entitled to relief, it was not part of the files and records in the case. The portions of the files and records which conclusively show that appellant is not entitled to relief were not attached to the order denying the motion. The order therefore does not comply with the requirements of Rule 3.850.
The cause is remanded with instructions to the trial court to attach those portions of the record which refute appellant's claims or to afford him an evidentiary hearing.
ROBERT P. SMITH, Jr., C.J., and LARRY G. SMITH and WENTWORTH, JJ., concur.