Opinion
No. 82-1251.
September 22, 1982.
Appeal from the Circuit Court for St. Johns County, Richard G. Weinberg, J.
Elijah Kearse, in pro. per.
No appearance for appellee.
Appellant has appealed an order denying his motion for post conviction relief. Fla.R.Crim.P. 3.850. As grounds he alleges he was sentenced to five years in the penitentiary for a misdemeanor. If this is true he is entitled to relief because only upon conviction for a felony may a person be sentenced to prison, or be given more than one year incarceration.
The trial judge merely denied the motion and we have no way of knowing what the record will show in support of or in derogation of the allegations of the petition.
It is the trial judge's duty to either hold a hearing and enter findings and an order or attach to his order denying a hearing a record sufficient to show the petitioner is not entitled to a hearing. Meeks v. State, 382 So.2d 673 (Fla. 1980); VanBever v. State, 405 So.2d 474 (Fla. 5th DCA 1981); Gunn v. State, 378 So.2d 105 (Fla. 5th DCA 1980).
The order denying the motion for post conviction relief is reversed and this cause is remanded for compliance with Rule 3.850 and this opinion.
REVERSED AND REMANDED.
SHARP and COWART, JJ., concur.