Kearse v. State

DAUKSCH, Judge.

Appellant has appealed an order denying his motion for post conviction relief. Fla.R. Crim.P. 3.850. As grounds he alleges he was sentenced to five years in the penitentiary for a misdemeanor. If this is true he is entitled to relief because only upon conviction for a felony may a person be sentenced to prison, or be given more than one year incarceration.

The trial judge merely denied the motion and we have no way of knowing what the record will show in support of or in derogation of the allegations of the petition.

It is the trial judge’s duty to either hold a hearing and enter…