599 So. 2d 266 | Fla. Dist. Ct. App. | 1992
Michael E. JACKSON, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, First District.
*267 Appellant pro se.
No appearance for appellee.
PER CURIAM.
Michael E. Jackson has appealed an order of the trial court summarily denying his motion for post-conviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We reverse, and remand for further proceedings on the motion.
Jackson was convicted of an unspecified offense on October 4, 1990, and was sentenced as an habitual offender. On October 11, 1991, he filed the instant motion with the trial court, alleging that, despite Jackson's request that he do so, trial counsel had failed to file an appeal. The trial court summarily denied the motion, stating in its order that "said motion should be denied for the identical reasons set forth in the court's prior order of January 4, 1991, and therefore the relief prayed for in the motion before the court is duplicious [sic] and, further, the Defendant should be barred from filing any similar motions." The trial court did not attach copies of the previous motion and order to which it referred.
The allegation that a defendant made a timely request for appeal which counsel failed to honor creates a colorable claim of ineffective assistance of counsel, requiring either an evidentiary hearing or attachment of those portions of the record negating the allegation. Williams v. State, 596 So.2d 501 (Fla. 1st DCA 1992). In this case, the trial court denied the motion as successive, but attached neither the previous motion, nor the order ruling thereon. The order herein appealed is therefore reversed, and the case remanded for either attachment of those portions of the files and records conclusively showing that Jackson is entitled to no relief, or for further proceedings under Rule 3.850.
Reversed and remanded with directions.
JOANOS, C.J., BOOTH and SHIVERS, JJ., concur.
