AZMOE v. STATE (2001)

District Court of Appeal of Florida,Third District.

Ricky AZMOE, Appellant, v. The STATE of Florida, Appellee.

No. 3D00-178.

Decided: March 21, 2001

Before LEVY, SHEVIN and RAMIREZ, JJ.

Ricky Azmoe, in proper person. Robert A. Butterworth, Attorney General, and Steven R. Berger, Assistant Attorney General, for appellee.

We reverse the order denying defendant's motion for post conviction relief. Defendant's motion raises issues concerning the enforcement of his plea agreement. However, there is no transcript of the plea colloquy; the court reporting firm is unable to locate the reporter's notes, and she has not responded to attempts to contact her. Therefore, the terms of the plea agreement are not part of the record, and nothing before the trial court conclusively refutes defendant's allegations. Accordingly, defendant is entitled to an evidentiary hearing. See Clements v. State, 346 So.2d 1233 (Fla. 3d DCA 1977).

Reversed and remanded for an evidentiary hearing.

PER CURIAM.

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