
    Kenneth RUDOLPH, Appellant, v. STATE of Florida, Appellee.
    No. BO-92.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1987.
    On Motion for Rehearing April 1,1987.
    Kenneth Rudolph, pro se.
    Robert A. Butterworth, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   MILLS, Judge.

Rudolph appeals from an order denying him post-conviction relief sought pursuant to Florida Rules of Criminal Procedure 3.850. We reverse and remand.

Rule 3.850 requires that in those instances where the denial of a motion for post-conviction relief is not based on the legal insufficiency of the motion, “a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief shall be attached to the order,” or an evidentiary hearing be granted. Calhoun v. State, 362 So.2d 726 (Fla. 1st DCA 1978). Neither action was taken by the court below. Accordingly, we remand this case to the trial court with instructions to (1) attach those portions of the case file and record which refute the appellant’s allegations, or (2) conduct an evidentiary hearing and, then, either grant or deny the relief sought by the appellant. Payne v. State, 362 So.2d 688 (Fla. 2d DCA 1978); Cookish v. State, 416 So.2d 53 (Fla. 4th DCA 1982).

Reversed and remanded with directions.

BOOTH, C.J., and THOMPSON, J., concur.

ON MOTION FOR REHEARING

The State urges, and we agree, that our opinion should be modified to direct the trial court to comply with Rule 3.850 as amended in 1984. The opinion is therefore modified to require the trial court to (1) attach those portions of the files and records conclusively showing the defendant is entitled to no relief, or (2) conduct further proceedings in accordance with Rule 3.850. Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986); Wright v. State, 492 So.2d 394 (Fla. 1st DCA 1986); Price v. State, 487 So.2d 34 (Fla. 1st DCA 1986).

BOOTH, C.J., and THOMPSON, J., concur.  