Opinion
No. 77-1980.
February 6, 1979.
Appeal from the Circuit Court for Dade County, Natalie Baskin, J.
Bennett H. Brummer, Public Defender, and Kurt Marmar, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., Joel D. Rosenblatt, Asst. Atty. Gen., and Clifford M. Miller, Legal Intern, for appellee.
Before PEARSON, KEHOE and SCHWARTZ, JJ.
This appeal is taken by the defendant pursuant to Florida Rule of Appellate Procedure 9.140(g), which provides for an appeal from an order denying relief under Florida Rules of Criminal Procedure 3.850 without a hearing. We find that the defendant's motion for post-conviction relief sets forth facts which, if established, would show that he was mentally and physically incapable of making a defense at the time of his trial; also, the record does not conclusively refute that claim. Therefore, the order appealed is reversed and the cause is remanded for an evidentiary hearing.
It is so ordered.