Futrell v. State

932 So.2d 642 (2006)

Xavier FUTRELL, Appellant,
v.
STATE of Florida, Appellee.

No. 4D05-3616.

District Court of Appeal of Florida, Fourth District.

July 12, 2006.

Xavier Futrell, Raiford, pro se.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L'Italien, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Xavier Futrell appeals from the trial court's order summarily denying his rule 3.850 motion for postconviction relief. We affirm the order in part, as all claims except claim eight are legally insufficient to warrant relief. As to claim 8, Futrell argued that his counsel was ineffective for making several comments in opening statement which were prejudicial and tantamount to admissions of guilt. The State's response to the motion failed to attach any portions of the record refuting this claim, nor did the trial court's order. In its response to our order to show cause, the state now has attached the opening statement which appears to show that Futrell is entitled to no relief, but those portions were not attached to the state's response or incorporated in the order on appeal. See Fla. R.Crim. P. 3.850(d). Therefore, we must reverse and remand to the trial court for reconsideration of ground eight of the motion and for the attachment of records that conclusively refute the allegations therein.

Affirmed in part; Reversed in part and Remanded.

WARNER, POLEN, JJ., and DELL, JOHN W., Senior Judge, concur.