Summary
reversing the summary denial because neither the trial court's order nor the State's incorporated response appended any record
Summary of this case from Barnes v. StateOpinion
No. 2D06-1657.
July 28, 2006.
Appeal from the Circuit Court, Polk County, Dennis P. Maloney, J.
Jon Paul Burnett challenges the postconviction court's order that denied his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. The postconviction court initially determined that the six claims of ineffective assistance of counsel alleged in Burnett's motion were facially sufficient and ordered the State to respond. The State filed a seventeen-page response that is replete with references to the record. However, the State's response contains no record attachments to support its detailed rebuttal of Burnett's claims. In its final order denying Burnett's motion, the postconviction court merely adopted and incorporated by reference the State's response and failed to append any record attachments to its order. Thus the order does not support the summary denial of Burnett's motion. See Loomis v. State, 691 So.2d 34, 35 (Fla. 2d DCA 1997); Flores v. State, 662 So.2d 1350, 1351-52 (Fla. 2d DCA 1995).
Accordingly, we reverse the postconviction court's order and remand for reconsideration of Burnett's motion. If the postconviction court again denies Burnett's motion, it must either attach to its order those portions of the record that conclusively refute his claims, or as to any claim or claims that are not conclusively refuted by the record, conduct an evidentiary hearing.
Reversed and remanded.
SALCINES and SILBERMAN, JJ., Concur.