Dowda v. State, 417 So. 2d 1147

COWART, Judge.

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.

Case Details

Case Name: Dowda v. State

Court Name: District Court of Appeal of Florida

Date Published: Aug 11, 1982

Citations: 417 So. 2d 1147; 1982 Fla. App. LEXIS 20853; No. 82-906

Docket Number: No. 82-906

Court Abbreviation: Fla. Dist. Ct. App.