Opinion
No. 90-3321.
November 20, 1991.
Appeal of order denying rule 3.850 motion from the Circuit Court for Broward County; Arthur J. Franza, Judge.
Bradley R. Stark, Miami, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Jacqueline Saltiel, Asst. Atty. Gen., West Palm Beach, for appellee.
OPINION ON REHEARING
We grant the motion for rehearing, vacate our previous opinion and substitute the following opinion.
This is an appeal from an order denying a motion for relief under rule 3.850, Florida Rules of Criminal Procedure. There was no evidentiary hearing, and the only attachment to the order of denial was a copy of the state's response.
A trial court may summarily deny a motion made pursuant to rule 3.850 if, although in proper form, it is legally insufficient on its face. Gentry v. State, 464 So.2d 659 (Fla. 4th DCA 1985). However, if a motion is legally sufficient and the files and records in the case do not conclusively show that the movant is not entitled to relief, there must be an evidentiary hearing to determine the merits of the defendant's position.
We hold that the files and records tendered in this case do not meet the burden imposed by law, and we therefore reverse and remand for an evidentiary hearing.
REVERSED AND REMANDED.
HERSEY, POLEN and FARMER, JJ., concur.