Moore v. State, No. 95-1309

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM
Citation661 So.2d 921
Decision Date18 October 1995
Docket NumberNo. 95-1309
Parties20 Fla. L. Weekly D2352 Marvin MOORE, Appellant, v. STATE of Florida, Appellee.

Page 921

661 So.2d 921
20 Fla. L. Weekly D2352
Marvin MOORE, Appellant,
v.
STATE of Florida, Appellee.
No. 95-1309.
District Court of Appeal of Florida,
First District.
Oct. 18, 1995.

Marvin Moore, pro se.

Page 922

No appearance for Appellee.

PER CURIAM.

Appellant, Marvin Moore, appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, raising three issues. We affirm in part, reverse in part and remand.

A trial court may not summarily deny a 3.850 motion alleging that trial counsel failed to object to a habitual-offender sentence which the sentencing court imposed without following proper procedures, unless the court attaches portions of the record that refute such claim. Hall v. State, 603 So.2d 650 (Fla. 1st DCA 1992); Wells v. State, 598 So.2d 259 (Fla. 1st DCA 1992).

It is also reversible error to summarily deny a 3.850 motion alleging that trial counsel failed to honor the defendant's timely request to take an appeal, without attaching portions of the record that refute such claim. Hudson v. State, 596 So.2d 1213 (Fla. 1st DCA 1992); Short v. State, 596 So.2d 502 (Fla. 1st DCA 1992).

Moore's third issue should have been raised on direct appeal, therefore, we affirm the court's summary denial of that issue.

Accordingly, we reverse and remand this case to the trial court with directions to either attach portions of the record to refute Moore's claims of ineffective assistance, or conduct an evidentiary hearing regarding these matters.

AFFIRM IN PART, REVERSE IN PART and REMAND.

ERVIN, MICKLE and LAWRENCE, JJ., concur.

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2 practice notes
  • Trowell v. State, No. 95-3082
    • United States
    • Court of Appeal of Florida (US)
    • January 20, 1998
    ...is inconsistent with a substantial body of case law from this court and other district courts of appeal. See, e.g., Moore v. State, 661 So.2d 921 (Fla. 1st DCA 1995); Kiser v. State, 649 So.2d 333 (Fla. 1st DCA 1995); Owens v. State, 643 So.2d 105 (Fla. 1st DCA 1994); Clayton v. State, 635 ......
  • Owens v. State, No. 97-1183.
    • United States
    • Florida District Court of Appeals
    • December 11, 1998
    ...of his right to appeal. The allegation that counsel failed to file a notice of appeal as requested appears sufficient. Moore v. State, 661 So.2d 921 (Fla. 1st DCA 1995) (It is reversible error to summarily deny a 3.850 motion alleging that trial counsel failed to honor the defendant's timel......
2 cases
  • Trowell v. State, No. 95-3082
    • United States
    • Court of Appeal of Florida (US)
    • January 20, 1998
    ...is inconsistent with a substantial body of case law from this court and other district courts of appeal. See, e.g., Moore v. State, 661 So.2d 921 (Fla. 1st DCA 1995); Kiser v. State, 649 So.2d 333 (Fla. 1st DCA 1995); Owens v. State, 643 So.2d 105 (Fla. 1st DCA 1994); Clayton v. State, 635 ......
  • Owens v. State, No. 97-1183.
    • United States
    • Florida District Court of Appeals
    • December 11, 1998
    ...of his right to appeal. The allegation that counsel failed to file a notice of appeal as requested appears sufficient. Moore v. State, 661 So.2d 921 (Fla. 1st DCA 1995) (It is reversible error to summarily deny a 3.850 motion alleging that trial counsel failed to honor the defendant's timel......

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