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Dowda v. State

District Court of Appeal of Florida, Fifth District
Aug 11, 1982
417 So. 2d 1147 (Fla. Dist. Ct. App. 1982)

Summary

holding that a circuit court was required to attach record evidence specifically showing that counsel was "appointed or retained to file and prosecute" a rule 3.850 motion before treating it as a nullity

Summary of this case from Murray v. State

Opinion

No. 82-906.

August 11, 1982.

Appeal from the Circuit Court, Seminole County, Dominick J. Salfi, J.

James Russo, Public Defender, and Norman D. Levin, Asst. Public Defender, Sanford, for appellant.

No appearance for appellee.


The trial court declared appellant's pro se 3.850 motion a nullity, stating that appellant cannot file a pleading when represented by counsel and citing Sheppard v. State, 391 So.2d 346 (Fla. 5th DCA 1980). The trouble is that the rule requires that such motions be given an evidentiary hearing unless the files and records conclusively show entitlement to no relief and, when so, that such files and records be attached to the order. There is nothing attached to the appealed order showing that appellant has counsel appointed or retained to file and prosecute his 3.850 motion. Appellant's motion appears to raise the troublesome issue as to whether he received the proper amount of credit for jail time served before sentencing. See Meintzer v. State, 399 So.2d 133 (Fla. 5th DCA 1981). Accordingly we reverse and remand this cause for the trial court to either (1) enter another order attaching portions of court files and records showing either (a) that appellant has counsel to file and present his 3.850 motion or (b) that he received proper credit for all jail time served before sentencing, or (2) conduct an evidentiary hearing to determine one or both of those questions of fact.

REVERSED AND REMANDED.

ORFINGER, C.J., and SHARP, J., concur.


Summaries of

Dowda v. State

District Court of Appeal of Florida, Fifth District
Aug 11, 1982
417 So. 2d 1147 (Fla. Dist. Ct. App. 1982)

holding that a circuit court was required to attach record evidence specifically showing that counsel was "appointed or retained to file and prosecute" a rule 3.850 motion before treating it as a nullity

Summary of this case from Murray v. State
Case details for

Dowda v. State

Case Details

Full title:LEWIS DOWDA, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fifth District

Date published: Aug 11, 1982

Citations

417 So. 2d 1147 (Fla. Dist. Ct. App. 1982)

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