Opinion
No. 75-636.
November 26, 1976.
Appeal from the Circuit Court, Brevard County, A.J. Hosemann, Jr., J.
Thomas Walter Saunders, in pro. per.
Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant appeals from an order of the Circuit Court of Brevard County summarily denying his motion to vacate pursuant to Rule 3.850 Fla.R.Crim.P. Summary denial of a motion under Rule 3.850 can be sustained only when the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. Merritt v. State, 165 So.2d 245 (Fla.2d DCA 1964). The allegations of appellant's motion, if true, would be sufficient to entitle him to post-conviction relief. The trial judge, in his order summarily denying appellant's motion to vacate judgment, recites that the files and records of the case conclusively show that the prisoner is entitled to no relief.
Appellant in his Directions to the Clerk from making up the record-on-appeal asked that transcripts of all hearings be included. We have reviewed the record-on-appeal. No transcripts of any hearings are included. We must therefore assume that there were no such transcripts in the files and records of this case. Particularly crucial is the record of the proceedings before the trial court when appellant entered his plea of guilty and when he was sentenced. Without these transcripts we cannot say that the files and records of this case conclusively show that appellant is entitled to no relief. Williams v. State, 163 So.2d 767 (Fla.2d DCA 1964).
REVERSED and REMANDED for an evidentiary hearing on appellant's motion to vacate.
DOWNEY and ALDERMAN, JJ., concur.
MAGER, C.J., concurs in conclusion only.