Parker v. State, 73-500

• Decision Date: 08 November 1974
• Docket Number: No. 73-500,73-500
• Citation: 303 So.2d 56
• Parties: Willie Bernard PARKER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 56

303 So.2d 56

Willie Bernard PARKER, Appellant, v. STATE of Florida, Appellee.

No. 73-500.

District Court of Appeal of Florida, Fourth District.

Nov. 8, 1974.

Richard L. Jorandby, Public Defender, and Bruce J. Daniels, Asst. Public Defender, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

This is an appeal from an order which denied, without an evidentiary hearing, appellant's motion to vacate pursuant to Rule 3.850, FRCrP. Upon consideration of the record herein we are of the opinion that the appellant's motion to vacate should not have been summarily denied without an evidentiary hearing. The allegations contained in the appellant's motion to the effect that his guilty plea was not voluntarily made because he was not advised that he was waiving certain constitutional rights are not conclusively refuted by the files and record of the proceedings at which such plea was entered. See, in particular, Clark v. State, Fla.App.1972, 256 So.2d 551 and Brumley v. State, Fla.App.1969, 224 So.2d 447; see also Davis v. State, Fla.App.1973, 277 So.2d 300; Scarborough v. State, Fla.App.1973, 278 So.2d 657.

The order appealed from is reversed and this cause remanded for the purpose of affording the appellant an evidentiary hearing on his motion.

Reversed and remanded.

OWEN, C. J., and MAGER and DOWNEY, JJ., concur.