Evans v. State , 588 So. 2d 1096 ( 1991 )

PER CURIAM.

Mark Anthony Evans has appealed an order of the trial court summarily denying his motion for post-conviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We reverse and remand for further proceedings in accordance with that rule.

Evans’ motion alleged that he pled nolo contendere to a charge of battery in a detention facility in return for a sentence concurrent with one previously imposed. He was adjudged guilty and sentenced to 4V2 years as an habitual offender. Evans argued that the habitual offender classification both violated his plea agreement, and was imposed without the requisite notice. The trial court summarily denied the motion, finding that the allegations were refuted by the files and records in the case. Although the order recites that a copy of the sentencing transcript is attached, no attachments appear in our record.

When a 3.850 motion is denied without a hearing, and such denial is not predicated upon the legal insufficiency of the motion, a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief shall be attached to the order. Rule 3.850, Fla. R.Crim.P. We therefore reverse the order denying Evans’ motion, and remand for either attachment of those portions of the files and records which conclusively show that Evans is entitled to no relief, or further proceedings consistent with Rule 3.850.

Reversed and remanded with directions.

JOANOS, C.J., and SMITH and ALLEN, JJ., concur.