Halpin v. State , 428 So. 2d 703 ( 1983 )

428 So. 2d 703 (1983)

Donald E. HALPIN, a/k/a Charles W. Engle, Appellant,
v.
STATE of Florida, Appellee.

No. 83-35.

District Court of Appeal of Florida, Second District.

February 16, 1983. Rehearing Denied March 18, 1983.

PER CURIAM.

Donald E. Halpin appeals the summary denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Appellant raised four points in the motion. The allegation in point one, that appellant was denied effective assistance of counsel because his trial counsel failed to comply with appellant's request that he subpoena Thomas V. Knopp to testify, if true, might entitle appellant to relief. The trial court, however, failed to conduct an evidentiary hearing or attach portions of the record which refute this allegation.

The trial court was correct in denying appellant's motion as to the other points raised therein.

Accordingly, we reverse in part the trial court's denial of appellant's motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion as to the allegation in point one and attach to its order those portions of the record which conclusively show that appellant is not entitled to relief or hold an evidentiary hearing and then rule on the ground alleged in point one of the motion. See Fla.R.Crim.P. 3.850. See also Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982), and Van Bever v. State, 405 So. 2d 474 (Fla. 5th DCA 1981). To obtain further review any aggrieved party must appeal the new ruling of the trial court.

AFFIRMED in part, REVERSED in part, and REMANDED.

OTT, Acting C.J., and BOARDMAN and CAMPBELL, JJ., concur.