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921 So. 2d 12

Balvin v. State

District Court of Appeal of Florida

Decided January 4, 2006

District Court of Appeal of Florida · decided 2006-01-04

Relies on Descally v. State · Gaskin v. State

Decided 2006-01-04

FLETCHER, Judge.

¶1William Dejesus Balvin appeals from an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. *13On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. Crim P. 9.141(b)(2)(D).

¶2Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing to determine (1) whether the defendant may belatedly petition for post-conviction relief where he was incarcerated in Federal prison and allegedly deprived of access to Florida legal materials or (2) whether he was represented by counsel at sentencing and/or during the two-year statutory period for pursuing post-conviction relief, or (3) for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief. See Ballester v. State, 781 So.2d 503 (Fla. 3d DCA 2001); Descally v. State, 792 So.2d 1222 (Fla. 3d DCA 2001).

¶3Reversed and remanded for further proceedings.

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