Opinion
No. 89-2296.
August 15, 1990.
Petition for review from the Circuit Court for Broward County, Mel Grossman, J.
Charles G. White, Miami, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and John Tiedemann, Asst. Atty. Gen., West Palm Beach, for appellee.
Wenceslao Manuel Lora appeals the trial court's final order, dated January 26, 1989, denying his motion for post conviction relief. Appellant did not file his notice of appeal until March 3, 1989. This court, upon appellant's petition for habeas corpus, granted belated appellate review and considered the petition as a notice of appeal. We reverse.
As a preliminary matter, we find that the trial court erred in concluding that appellant was not a "prisoner in custody" for Florida Rule of Criminal Procedure 3.850 purposes and therefore lacked standing to challenge his sentence of community control and probation. State v. Bolyea, 520 So.2d 562 (Fla. 1988).
Moreover, we find that the trial court erred in summarily denying appellant's motion for post conviction relief without a hearing. In the alternative, where the trial judge's denial was not predicated on the legal sufficiency of the allegations, it was incumbent upon the trial court to attach those portions of the files and records which conclusively demonstrate that appellant is entitled to no relief. Harden v. State, 528 So.2d 544 (Fla. 1st DCA 1988). This, the trial court failed to do. Accordingly, we reverse and remand with instructions to the trial court to comply with the requirements of Florida Rule of Criminal Procedure 3.850.
Our disposition of appellant's points I and V renders premature any consideration of appellant's remaining points, pending outcome of the 3.850 proceedings below.
ANSTEAD, GLICKSTEIN and POLEN, JJ., concur.