Fowler v. State

408 So. 2d 634 | Fla. Dist. Ct. App. | 1981

SHARP, Judge.

Appellant, Fowler, appeals the trial court’s denial of his motion for post-conviction relief made pursuant to Florida Rule of Criminal Procedure 3.850. We remand with instructions.

Fowler, while admitting that the trial court dutifully advised the appellant of the rights he was giving up by pleading guilty and inquired as to the factual basis for the plea, alleges in his motion that the trial court did not inform him of the charges against him. While we have reservations regarding the facial sufficiency of appellant’s motion, because the trial court predicated its denial of the motion for post-conviction relief upon the contents of the record, those portions of the record which conclusively refute appellant’s allegations should have been attached to the trial court’s order.¹ Accordingly, this cause is remanded to the trial court so that it may attach those portions of the record which conclusively refute Fowler’s allegation.

REMANDED WITH INSTRUCTIONS.

FRANK D. UPCHURCH, J., concurs. COWART, J., dissents without opinion.

1 . Fla.R.Crim.P. 3.850; see, e.g., Miles v. State, 174 So.2d 576 (Fla. 3d DCA 1965); Adkins v. State, 165 So.2d 231 (Fla. 2d DCA 1964).