Opinion
No. 84-2438.
August 9, 1985.
Appeal from the Circuit Court, Collier County, Ted H. Brousseau, J.
James Marion Moorman, Public Defender and John T. Kilcrease, Jr., Asst. Public Defender, Bartow, for appellant.
William E. Bolyea appeals the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. In his motion, appellant alleged that his attorney was ineffective in that he failed to present certain evidence which may have affected the outcome of his trial. If these allegations are true, appellant might be entitled to post-conviction relief. The trial court, however, failed to conduct an evidentiary hearing or attach portions of the record which would refute these allegations.
Accordingly, we reverse the trial court's denial of the appellant's motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion and attach to its order those portions of the record which conclusively show that appellant is not entitled to relief, or hold an evidentiary hearing and then rule on the allegations raised in appellant's motion. See Fla.R.Crim.P. 3.850. See also Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982) and Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981).
To obtain further review, any aggrieved party must appeal the new ruling of the trial court.
SCHEB and FRANK, JJ., concur.