Opinion
No. 83-440.
May 18, 1983.
Appeal from the Circuit Court, Hendry County, James R. Adams, J.
This appeal is from the summary denial of a motion seeking postconviction relief under Florida Rule of Criminal Procedure 3.850. Appellant raised several points in the motion. The allegation in paragraph 8 that appellant was sentenced to twenty years for unarmed robbery, a second degree felony, if true, would entitle appellant to relief in that the maximum sentence authorized by law is fifteen years. §§ 812.13 and 775.082(3)(c), Fla. Stat. (1981). The trial court, however, failed to either conduct an evidentiary hearing or attach portions of the record which refute that allegation.
Accordingly, we reverse in part the trial court's denial of appellant's motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion as to the allegation specified, and attach to its order those portions of the record which conclusively show appellant is not entitled to relief or hold an evidentiary hearing and then rule on the ground alleged in the above portion of the 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.
The trial judge was correct in denying the appellant's motion as to the other points raised therein.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED with instructions.
SCHEB and LEHAN, JJ., concur.