498 So. 2d 923 - Lemon v. State

How this case has been cited

4 federal appellate · 2 district · 27 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1Larry 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.

¶2Jim Smith, Atty. Gen. and Katherine V. Blanco and Peggy A. Quince, Asst. Attys. Gen., Tampa, for appellee.

¶3PER CURIAM.

¶4George 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.

¶5We 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).

¶6It 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.

¶7It is so ordered.

¶8ADKINS, OVERTON, EHRLICH, SHAW and BARKETT, JJ., concur.

¶9McDONALD, C.J., and BOYD, J., dissent.