Opinion
No. BI-267.
July 29, 1986. On Motion for Rehearing September 23, 1986.
An appeal from the Circuit Court for Jackson County. Robert L. McCrary, Judge.
Mike Newgent, pro se.
Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee/respondent.
On March 12, 1985, this court issued its order to the trial court to supply those portions of the record that support its order denying post-conviction relief. We further ordered the trial court to determine the date the order was served on the appellant.
We have received a certificate from the clerk of the circuit court which fails to establish precisely when the order was served on appellant, Mike Newgent. We therefore presume appellant's motion for rehearing was timely, and as a result this appeal is timely.
No portions of the record have been received to support the denial of relief.
Since the appellant's claims, if true, would merit relief, the denial of relief is REVERSED and the case is REMANDED to the trial court to hold an evidentiary hearing to establish whether appellant is entitled to post-conviction relief.
THOMPSON and ZEHMER, JJ., concur.
ON MOTION FOR REHEARING
In its motion for rehearing, the State requests this court to modify its directions to the trial court to permit the State to respond to the appellant's motion pursuant to Rule 3.850 before an evidentiary hearing is mandated. The State's position is well-taken. We modify our opinion to provide that the State be directed to respond to the motion as such response may obviate the need for an evidentiary hearing in this case.
THOMPSON and ZEHMER, JJ., concur.