07-5445 JOHNNY J. TIMS, v. STATE OF FLORIDA

State: Florida

Court: Florida First District Court

Docket No: 07-5445

Case Date: 12/12/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

JOHNNY J. TIMS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________/ Opinion filed December 12, 2008.

CASE NO. 1D07-5445

An appeal from the Circuit Court for Escambia County. Hon. Jan Shackelford, Judge. Johnny J. Tims, pro se, Appellant. Bill Mc Collum, Attorney General and Daniel A. David, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

PER CURIAM. The appellant challenges the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without discussion the denial of appellant's claims of ineffective assistance of counsel. However, we reverse and remand the denial of appellant's claim that there was no factual basis supporting his plea to one count of felony battery causing great bodily

harm. See Sherwood v. State, 734 So. 2d 1050 (Fla. 1st DCA 1998) (reversing and remanding claim in 3.850 motion that appellant pled to offense for which there was no factual basis); Jones v. State, 647 So. 2d 182 (Fla. 1st DCA 1994) ("When a 3.850 movant alleges that his plea had no factual basis, and the trial court fails to attach to its order those portions of the record establishing that basis, the order does not conclusively show that the movant is entitled to no relief."). The trial court shall attach records refuting appellant's allegations or hold an evidentiary hearing.

LEWIS and THOMAS, JJ., and LAWRENCE, JR., L. ARTHUR, SENIOR JUDGE, CONCUR.

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