BROWN v. STATE (1997)

District Court of Appeal of Florida,First District.

Charlie BROWN, Jr., Appellant, v. STATE of Florida, Appellee.

No. 96-2792.

Decided: February 26, 1997

Charlie Brown, Jr., pro se, appellant. Robert A. Butterworth, Attorney General, and Sonya Roebuck Horbelt, Assistant Attorney General, Tallahassee, for appellee.

Charlie Brown, Jr., appeals the trial court's order which denied his motion for post-conviction relief. The movant asserted that his consecutive sentencing was contrary to Hale v. State, 630 So.2d 521 (Fla.1993). The motion was denied on grounds that this issue was previously raised in a 3.850 motion, denied on its merits, and this court affirmed the decision. However, the affirmance was predicated on facial insufficiency of the motion and not a determination that the correct legal result on the Hale issue had been reached. See Brown v. State, 649 So.2d 349 (Fla. 1st DCA 1995). Denial of the motion as successive was therefore error. See Wallace v. State, 463 So.2d 467 (Fla. 2d DCA 1985).

We reverse and remand the order with directions to either attach portions of the record which refute the claim, to conduct a hearing, or to grant relief. See Odom v. State, 682 So.2d 572 (Fla. 5th DCA 1996).

PER CURIAM.

MINER, ALLEN and MICKLE, JJ., concur.

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