
    Elius POLY, Appellant, v. STATE of Florida, Appellee.
    No. 87-0171.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1987.
    
      Elius Poly, Raiford, pro se.
    Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Carolyn V. McCann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The trial court denied without evi-dentiary hearing appellant’s pro se motion to vacate filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. The order was based upon a finding that the verification was deficient under Scott v. State, 464 So.2d 1171 (Fla.1985) and that the motion contained insufficient facts to warrant an evidentiary hearing under Knight v. State, 394 So.2d 997 (Fla.1981), a defect not cured by the additional but un-sworn factual allegations contained in a memorandum of law attached to the motion. Daniels v. State, 450 So.2d 601 (Fla. 4th DCA 1984). The court correctly denied the motion for those reasons.

Despite its finding of the insufficiency of the motion, the court proceeded to consider the unsworn factual allegations contained in the separate memorandum of law and found that they did not require an evidentiary hearing because they were conclusively refuted by the record. We do not believe that the portion of the record attached to the order conclusively refutes the alleged ineffective assistance of counsel, and were those issues based upon factual allegations properly sworn to and contained in the motion, we would undoubtedly reverse and remand for an evidentiary hearing. Since they were not properly presented (and would not be even if we now remanded) we feel that the better practice would be to vacate that portion of the order which ruled upon the merits of the alleged ineffective assistance of counsel. As thus modified the order is affirmed without prejudice to appellant’s right to seek relief on the same grounds upon the pleading of sufficient and properly sworn factual allegations.

AFFIRMED AS MODIFIED.

DELL, J., and OWEN, WILLIAM C., Jr., (Retired), Associate Judge, concur.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge,

concurring spécially.

I write because, in my view, the special concurrence by a panelist to the per curiam affirmance in the direct appeal became a red herring in the proceedings on this motion at the trial level. See Poly v. State, 466 So.2d 423 (Fla. 4th DCA 1985). The issues involved in the direct appeal are not the issues in the collateral attack on the ground of ineffective assistance of counsel.

The value judgments expressed in the direct appeal by that appellate panel are no more relevant to the issue here than those reflected in the direct appeal of Peterson v. State, 376 So.2d 1230 (Fla. 4th DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980), a case in which the prosecutor had made a number of remarks — some to which objection was made and some to which none was made. The Peterson panel and the Poly panel not only had the obligation to consider each remark individually but also to consider all of the remarks collectively. The Peterson panel expressly did that; and I assume the Poly panel did the same, although the concurrence addresses only one of the remarks.

When this petition was filed, the state relied upon the panelist’s concurrence, particularly the word “fundamental” which appeared therein, as did the trial court in its order. In my judgment, the state, defendant and trial court should disregard the characterization of the errors and criticism of the prosecutor in the concurrence and should concentrate upon any future sworn allegations in light of the governing authority cited by the trial court in its order; namely, Knight v. State, 394 So.2d 997 (Fla.1981), and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  