Jerry Gallion v. State of Florida , 154 So. 3d 1149 ( 2014 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JERRY GALLION, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D13-2905
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed December 9, 2014.
An appeal from the Circuit Court for Duval County.
Mallory D. Cooper, Judge.
Jerry Gallion, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Lauren Brudnicki, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
Appellant, Jerry Gallion, appeals an order denying his postconviction relief
motion which he filed pursuant to Florida Rule of Criminal Procedure 3.850. We
find no error in the trial court’s denial of relief as to Grounds 1, 3, and 6 following
an evidentiary hearing. However, because the trial court summarily denied
Grounds 2, 4, 5, 7, 8, and 9 without attaching portions of the record conclusively
refuting the claims, a fact acknowledged by the State, we reverse and remand with
instructions that the court either attach such portions of the record or hold an
evidentiary hearing on the claims. See Wainwright v. State, 896 So. 2d 695, 698
(Fla. 2004) (noting that a defendant is entitled to an evidentiary hearing on a
postconviction relief claim unless the motion and record conclusively show that he
or she is entitled to no relief or where the claim is legally insufficient); Simmons v.
State, 66 So. 3d 327, 327-28 (Fla. 1st DCA 2011) (reversing for record attachments
or for an evidentiary hearing where the trial court failed to assemble a record from
which it could be conclusively determined that the appellant was not entitled to any
relief on his facially sufficient rule 3.850 claim); Washington v. State, 10 So. 3d
1126, 1127 (Fla. 1st DCA 2009) (“If the postconviction defendant’s claims are
legally sufficient, the trial court must attach portions of the record that conclusively
refute the claims.”).
AFFIRMED in part; REVERSED in part; and REMANDED with
instructions.
LEWIS, C.J., VAN NORTWICK and SWANSON, JJ., CONCUR.
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