Holmes v. State

ON MOTION FOR REHEARING

We grant defendant’s motion for rehearing, withdraw the opinion dated October 5, 1994, and substitute the following opinion. Defendant appeals an order summarily denying his Rule 3.850 motion. Defendant correctly asserts that the trial court erred in denying the motion on its face. The portion of the record attached to the order fails to refute defendant’s claim that he was physically unable to surrender timely for sentencing. See Clark v. State, 620 So.2d 1137 (Fla. 3d DCA 1993). Therefore, defendant is entitled to an evidentiary hearing to establish that his failure…