Opinion
No. 73-1196.
November 19, 1974. Rehearing Denied December 11, 1974.
Appeal from the Circuit Court for Dade County, Alfonso C. Sepe, J.
Phillip A. Hubbart, Public Defender, and Kathleen Gallagher, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Lance R. Stelzer, Asst. Atty. Gen., for appellee.
Before BARKDULL, C.J., and PEARSON and HENDRY, JJ.
This appeal is from an order denying appellant's motion pursuant to rule 3.850, CrPR, to vacate judgment and sentence. The judgment was entered upon a plea of guilty. Appellant alleges in his motion that the plea was entered upon a promise that he would receive an examination by a psychiatrist and a further examination to determine whether he was suffering from brain damage. The purpose of the examination was to determine appellant's mental capacity at the time of the criminal acts as well as at the time of the trial.
The State confesses that the examinations were never ordered or performed. The record supports this confession of error.
The cause is remanded with directions to grant appellant's motion and to set aside the guilty plea and for such further proceedings as may be proper under law. See Pope v. State, 56 Fla. 81, 47 So. 487 (1908) and Hill v. State, Fla.App. 1959, 110 So.2d 464.
Reversed and remanded.