Opinion
No. 88-1504.
July 22, 1988.
Appeal pursuant to Fla.R.App.P. 9.140(g) from the Circuit Court for Pinellas County; Ray E. Ulmer, Jr., Judge.
Arzell Brown, Jr. appeals the summary denial of his motion for postconviction relief which alleged ineffective assistance of counsel at his withdrawal of plea hearing in March 1987. Specifically, Brown alleged that counsel was ineffective for advising him that he could not elect guidelines sentencing if he went to trial instead of pleading nolo contendere to the charges against him. The trial court denied Brown's motion without an evidentiary hearing and in its order incorporated by reference the state's attachments to its response to Brown's motion. None of these attachments conclusively refutes Brown's allegation, which presents a factual issue. See Hyer v. State, 501 So.2d 189 (Fla.2d DCA 1987).
Accordingly, we reverse and remand to the trial court for further proceedings consistent with Florida Rule of Criminal Procedure 3.850. Any party aggrieved by the subsequent action of the trial court must file a notice of appeal within thirty days to obtain appellate review.
RYDER, A.C.J., and DANAHY and PARKER, JJ., concur.