Summary
reversing order denying postconviction motion as successive and abuse of procedure for failure to attach prior motions and pertinent records to permit the appellate court to review the dismissal
Summary of this case from Smith v. StateOpinion
No. 91-02607.
September 13, 1991.
Appeal from the Circuit Court, Pasco County, Maynard F. Swanson, Jr., J.
Oliver Bell appeals the dismissal of his motion for postconviction relief filed pursuant Florida Rule of Criminal Procedure 3.850. The trial court dismissed the motion as successive and an abuse of procedure.
When a trial court denies a motion for postconviction relief without an evidentiary hearing, rule 3.850 requires the attachment to the order of "that portion of the files and records which conclusively shows that the prisoner is entitled to no relief." The rule does not expressly provide for such attachments when the trial court dismisses a motion after finding that it is successive. Without the attachment of any prior motions filed by the prisoner and other pertinent records in the case, however, this court is precluded from adequately reviewing the order of dismissal. Accordingly, we reverse and remand for the attachment of any documents in the record that support the trial court's dismissal. Any party aggrieved by the trial court's subsequent action shall file a notice of appeal within thirty days.
DANAHY, A.C.J., and PARKER and ALTENBERND, JJ., concur.