State v. Huby

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT January Term 2011 STATE OF FLORIDA, Appellant, v. LUIS HUBY, Appellee. No. 4D10-3817 [March 30, 2011] PER CURIAM. The state appeals an order granting appellee Luis Huby s amended motion for post-conviction relief filed under Florida Rule of Criminal Procedure 3.850. Without holding an evidentiary hearing on the amended motion, or giving notice and an opportunity to the State to respond to it, the trial court granted the motion, vacating Huby s open pleas and sentences for violation of probation. As we said in State v. Schiano, 696 So. 2d 531 (Fla. 4th DCA 1997), rule 3.850(d) does not authorize the trial court to summarily grant a motion for post conviction relief. We reverse and remand for further proceedings on this amended motion, to which the State should be permitted to respond, and for the trial court to allow an evidentiary hearing o n th e claims raised by appellee. Reversed and Remanded. GROSS, C.J., HAZOURI and MAY, JJ., concur. * * * Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Geoffrey D. Cohen, Judge; L.T. Case No. 04-7148 CF10A. Pamela J o Bondi, Attorney General, Tallahassee, a n d Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellant. Jonathan S. Friedman Lauderdale, for appellee. of Jonathan S. Friedman, P.A., Fort Not final until disposition of timely filed motion for rehearing. -2-

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