Summary
finding that the court erred because Appellant's prior post-conviction motion was properly filed as a rule 3.800 motion
Summary of this case from Kuiken v. StateOpinion
No. 1D00-3894.
October 17, 2001.
An appeal from the Circuit Court for Duval County. L. Haldane Taylor, Judge.
Appellant, pro se.
Robert A. Butterworth, Attorney General; James W. Rogers, Assistant Attorney General, Tallahassee, for Appellee.
Appellant seeks review of the trial court's order which summarily denied his rule 3.850 motion as successive. We conclude that the court erred in this ruling because Appellant's prior postconviction motion was properly filed as a rule 3.800(a) motion. See Ingledue v. State, 734 So.2d 518 (Fla. 5th DCA 1999).
Moreover, we conclude that Appellant's claims regarding trial counsel's failure to communicate with him and failure to investigate and call witnesses are facially sufficient. We therefore reverse and remand for the trial court to either attach record excerpts which conclusively refute Appellant's claims or to hold an evidentiary hearing. We affirm the summary denial of the remaining claims.
AFFIRMED in part, REVERSED in part, and REMANDED.
ALLEN, C.J., BOOTH and BENTON, JJ., CONCUR.