Opinion
No. 76-969.
June 14, 1977.
Appeal from the Circuit Court, Dade County, Lewis B. Whitworth, J.
Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
Before BARKDULL, HAVERFIELD and NATHAN, JJ.
Frankie L. Clements appeals from an order denying his motion to vacate pursuant to Rule 3.850, Fla.R.Crim.P.
Clements was charged with robbery in April of 1972. He pled guilty and was sentenced to life imprisonment. In May of 1972, Clements filed a pro se motion to vacate judgment and sentence alleging that his guilty plea was not voluntarily entered due to his mental and physical imcompetence inasmuch as he was severely injured and under the influence of drugs. The motion was summarily denied. A second motion to vacate was filed, and summarily denied. This appeal ensued.
The record before this court reflects that the trial judge who accepted the plea of guilty was no longer presiding at the time the motion was heard, and that the transcript of the plea proceedings is unavailable. Thus, there were no records before the trial court at the time that Clement's motion was heard which conclusively refutes the allegations. For this reason, Clements is entitled to an evidentiary hearing. Winegard v. State, 234 So.2d 166 (Fla.2d DCA 1970).
Reversed and remanded.