Lemon v. State

498 So. 2d 923 (1986)

George LEMON, Appellant, v. STATE of Florida, Appellee.

No. 69568.

Supreme Court of Florida.

December 11, 1986.

Rehearing Denied January 5, 1987.

Larry Helm Spalding, Capital Collateral Representative, Mark E. Olive, Litigation Director, Billy H. Nolas and Lissa J. Gardner, Office of the Capital Collateral Representative, Tallahassee, for appellant.

Jim Smith, Atty. Gen. and Katherine V. Blanco and Peggy A. Quince, Asst. Attys. Gen., Tampa, for appellee.

PER CURIAM.

George Lemon, a state prisoner for whom a death warrant has been signed, appeals the circuit court's denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We granted a stay of execution and now reverse the trial court's order and remand for an evidentiary hearing.

We previously affirmed appellant's conviction for first-degree murder and sentence of death. See Lemon v. State, 456 So. 2d 885 (Fla. 1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1233, 84 L. Ed. 2d 370 (1985).

It is clear that appellant is entitled to an evidentiary hearing unless "the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief." Fla.R.Crim.P. 3.850; State v. Crews, 477 So. 2d 984 (Fla. 1985); O'Callaghan v. State, 461 So. 2d 1354 (Fla. 1984). Having reviewed appellant's motion, files and record, we find that his allegations are sufficient to require an evidentiary hearing. Accordingly, we remand to the circuit court for further proceedings consistent herewith. The stay of execution issued November 4, 1986, is hereby dissolved.

It is so ordered.

ADKINS, OVERTON, EHRLICH, SHAW and BARKETT, JJ., concur.

McDONALD, C.J., and BOYD, J., dissent.