Opinion
Nos. 84-786, 86-1094.
October 21, 1986.
Appeal from the Circuit Court, Dade County, Maria M. Korvick, J.
Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and HUBBART and JORGENSON, JJ.
This is a consolidated appeal from a summary denial of a motion to vacate judgment and sentence filed pursuant to Fla.R. Crim.P. 3.850. There are two trial court orders under review here, both of which deny virtually identical motions to vacate without according the defendant an evidentiary hearing. Because (a) "the motion and the files and records in the case" do not "conclusively show that the prisoner is entitled to no relief," Fla.R.Crim.P. 3.850, on the claim of ineffective assistance of counsel at trial, and (b) the procedural and res judicata bars to relief relied on by the trial court in denying one of those motions have, by the state's admission, become moot, we reverse the orders under review and remand the cause to the trial court with directions to conduct a full evidentiary hearing on the defendant's motions to vacate, treated as a single consolidated motion.
We have not overlooked the various legal arguments raised by the parties concerning certain aspects of the defendant's ineffective assistance of counsel claim, but decline to pass on same in the absence of a full evidentiary record. We hold only that the trial court was in error in summarily denying the subject motions to vacate without conducting a full evidentiary hearing thereon. See O'Callaghan v. State, 461 So.2d 1354 (Fla. 1985); Vaught v. State, 442 So.2d 217 (Fla. 1983); Maura v. State, 469 So.2d 150 (Fla. 3d DCA 1985); Fla.R.App.P. 9.140(g).
Reversed and remanded.