EY v. STATE (2007)

Robert Ey appeals an order dismissing with prejudice his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.   The trial court dismissed this motion with prejudice, even though the State had conceded that an evidentiary hearing was required on portions of the motion.   The trial court dismissed the motion because Mr. Ey allegedly refused to leave the county jail to attend the hearing.   In imposing this sanction, the trial court relied on unsworn information conveyed to it by the bailiff, who in turn apparently received the information from someone at the jail.

Mr. Ey filed a timely motion for rehearing, explaining that the reasons and circumstances surrounding his failure to appear for the hearing were justifiable and that the trial court did not obtain accurate information when it dismissed his case with prejudice.   The trial court denied this motion without a hearing.   The State concedes that the trial court did not adequately address the motion for rehearing.

We note that the motion for postconviction relief, which was filed in January 2006, may be of little practical assistance to Mr. Ey because it appears to address convictions and sentences imposed in October 2003 that run concurrently with a substantially longer sentence imposed in 2001.   Nevertheless, we conclude that the trial court improperly denied his motion for rehearing.   Accordingly, we reverse and remand for the trial court to either conduct a hearing on the motion for rehearing or to grant that motion and conduct a hearing on the issues that had been previously scheduled for the hearing when Mr. Ey did not appear.

Reversed and remanded.

PER CURIAM.

NORTHCUTT, C.J., and ALTENBERND and STRINGER, JJ., Concur.