County Criminal Court:  CRIMINAL PROCEDURE – Post Conviction Relief – 3.850 motion for post-conviction relief was facially sufficient - error for trial court to deny motion without hearing or without attaching those portions of the files and records that conclusively show defendant is entitled to no relief -- Order reversed.  Hall v. State, No. 03-00088 APANO (Fla. 6th Cir. App. Ct. June 16, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

JOSEPH HALL, JR.,

                        Appellant,

vs.                                                                                            Appeal No. CRC 03-00088 APANO

                                                                                                UCN522003AP00088XXXXCR

STATE OF FLORIDA,

                        Appellee.

____________________________________/

 

Opinion filed ________________________

 

Appeal from Order Denying

Motion for Post-Conviction Relief

Judge Thomas B. Freeman

 

Joseph Hall, Jr.

Appellant, pro se

 

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by Joseph Hall, Jr. (Hall), from the Order denying Hall’s Motion for Post-Conviction Relief, entered April 29, 2003. Upon review of Hall’s brief, [1] the record, and being otherwise fully advised, the Court reverses the Order as set forth below.

            The only issue raised by Hall is whether trial counsel rendered ineffective assistance of counsel in advising Hall that “he could not beat the charge” and for failing to move to suppress evidence obtained following an allegedly unlawful traffic stop.  The record shows that Hall was arrested for possession of marijuana on December 20, 2001, and entered a plea of no contest on May 29, 2002.  Without reaching the substance of this issue, the Court finds that the trial court erred in denying Hall’s Motion for Post-Conviction Relief, filed pursuant to Florida Criminal Procedure Rules, Rule 3.850.  In reviewing Hall’s Motion, the Court finds that it is facially sufficient as it contains all the required elements as set forth by subsections (c)(1) through (c)(6) of the Rule.  As the Motion is facially adequate and not a successive motion, [2] the trial court must either attach “a copy of that portion of the files and records that conclusively shows that the movant is entitled to no relief” or, if the Motion cannot be disposed of in such a manner, conduct an evidentiary hearing to “determine the issues, and make findings of fact and conclusions of law with respect thereto.”  See Fla. R. Crim. P. Rule 3.850(d); see also Jones v. State, 384 So.2d 736 (Fla. 4th DCA 1980). 

            Therefore, it is, 

            ORDERED AND ADJUDGED that the Order is reversed and this cause remanded for action consistent with this Order and Opinion.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of June 2004.

 

 

                                                                        ___________________________________

                                                                        ROBERT J. MORRIS, JR.

                                                                        Circuit Judge

 

 

 

                                                                        ___________________________________

                                                                        IRENE SULLIVAN

                                                                        Circuit Judge

 

 

 

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge

Copies furnished to:

Judge Thomas B. Freeman

 

Joseph Hall, Jr., DC #581207

Moore Haven Correction Facility

Post Office Box 718501

Moore Haven, FL  33471

[1] The State did not file an Answer Brief.

[2] The Court notes that Hall filed a Motion for Post-Conviction Relief in a related case, No. CRC 01-16353 CFANO, which was denied, with incorporated memorandum of law, on October 8, 2002; this order was affirmed by the Second District Court of Appeal, Appeal No. 2D02-4677.