Florida District Courts of Appeal, 2005

Rosario v. State

Rosario v. State
Florida District Courts of Appeal · Decided June 10, 2005 · Canady, Fulmer, Kelly
903 So. 2d 1015; 2005 Fla. App. LEXIS 8792; 2005 WL 1364564 (Southern Reporter, Second Series)

Rosario v. State

Opinion of the Court

CANADY, Judge.

Jorge Rosario appeals the summary denial of his postconviction relief motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm Rosario’s second claim without comment. Because Rosario’s first claim is not conclusively refuted by the record attached to the trial court’s denial order, we reverse the denial of that claim. See Fla. R.Crim. P. 3.850(d).

Rosario contends that his no contest plea was involuntary because the trial court failed to conduct a plea colloquy that met the requirements of Florida Rule of Criminal Procedure 3.172(c). He claims that he was therefore unaware of his rights and that he would not have entered the plea if he had been advised of his rights. In denying this claim, the trial court attached a copy of the transcript of the proceeding at which the sentence was imposed on Rosario. The transcript does not reflect that a plea was entered at the hearing. The trial court erroneously concluded that Rosario’s claim was conclusively refuted by the transcript of the sentencing hearing.

We reverse the trial court’s denial of claim one. On remand, the trial court shall either attach those portions of the record conclusively refuting Rosario’s first claim or conduct an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

FULMER and KELLY, JJ., Concur.

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