Opinion
No. 4D99-2326.
Opinion filed March 8, 2000.
Appeal of order denying rule 3.850 motion from the Circuit Court of the Seventeenth Judicial Circuit, Broward County; Dale Ross, Judge; L.T. No. 95-18686 CF10B, 92-2520CF10A, 91-13729CF10C.
Luis Colon, Okeechobee, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Elaine L. Thompson, Assistant Attorney General, West Palm Beach, for appellee.
ON MOTION TO ENFORCE MANDATE
In our opinion reversing a summary denial of a rule 3.850 motion, we reversed and remanded on the authority of State v. Leroux, 689 So.2d 235 (Fla. 1996) and ordered the trial court to either attach portions of the record which conclusively refute the claim that appellant's plea was involuntary based on his counsel's misadvice, or to conduct an evidentiary hearing on the issue. On remand, the state, which had conceded the applicability of Leroux on appeal, filed a second response, basically ignoring Leroux. It attached to its pleading the plea colloquy which had been attached to the original order summarily denying relief. The trial court again denied the motion for postconviction relief, attaching the state's response with the plea colloquy.
The state's response simply referred to the plea colloquy which we previously held was insufficient to conclusively refute the claim in the motion. Thus, we conclude that our mandate has not been complied with, and we therefore order an evidentiary hearing on the issue.
WARNER, C.J., DELL and STEVENSON, JJ., concur.