Opinion
Case No. 3D05-2762.
Opinion filed January 18, 2006.
An Appeal under Fla.R.App.P. 9.141(b)(2) from the Circuit Court of Miami-Dade County, Israel Reyes, Judge, Lower Tribunal No. 02-21386.
Pedro P. Bayron, in proper person.
Charles J. Crist, Jr., Attorney General, for appellee.
Before GREEN, RAMIREZ, and ROTHENBERG, JJ.
Pedro P. Bayron appeals the summary denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging that the State failed to file any notice of its intent to seek habitual felony offender sentencing under section 775.084. Because the record before us fails to conclusively demonstrate that Bayron is not entitled to any relief, we reverse the decision of the trial court. See Fla. R. App. P. 9.141(b)(2)(D) ("On appeal from the denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief."); Lane v. State, 913 So. 2d 737 (Fla. 3d DCA 2005). On remand, the trial court either should attach those portions of the record that conclusively refute Bayron's claim or hold an evidentiary hearing.
Reversed and remanded.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.