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07/31/97 CHARLES FINNEY, Appellan v. STATE OF FLORIDA, Appell

BLUE BOOK CITATION FORM: 1997.FL.3121 (http://www.versuslaw.com)

[Editor's note: footnotes (if any) trail the opinion]

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

[1] IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

[2] SECOND DISTRICT

[3] CHARLES FINNEY, Appellant,

[4] STATE OF FLORIDA, Appellee.

[5] Case No. 97-02088

[6] Opinion filed July 30, 1997.

[7] Appeal pursuant to Fla. R. App. P. 9.140(g) from the Circuit Court for Hillsborough County; Chet A. Tharpe, Judge.

[8] PER CURIAM.

[9] The appellant, Charles Finney, challenges the trial court's summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part, reverse in part, and remand with directions.

[10] The appellant alleged thirteen separate claims for relief in his motion which the trial court summarily denied without attachments. We affirm the trial court's order with the exception of one aspect of the claim raised under the heading of "GROUND V." In this part of the motion, the appellant swore that his "public defender gave all his files to the state attorney when he was removed from the case and private counsel was appointed." The appellant further alleged under oath that the "public defender did not have [his] permission to violate his attorney-client confidentiality." In summarily denying this portion of the claim, the trial court failed to attach to its order any part of the record conclusively refuting this sworn allegation. Accordingly, we reverse and remand with directions that the trial court revisit this issue. If it once again summarily denies this claim, it must attach to its order those parts of the record conclusively refuting the appellant's assertion. Otherwise, an evidentiary hearing will be necessary.

[11] Affirmed in part, reversed in part, and remanded with directions.

[12] DANAHY, A.C.J., and LAZZARA and WHATLEY, JJ., Concur.

[Editor's note: Illustrations from the original opinion, if any, are available in the print version]

19970731

1997.FL.3121