Simmons v. State

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
RYAN J. SIMMONS, )
)
Appellant, )
)
v. ) Case No. 2D16-3871
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed September 15, 2017.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Manatee County; Susan B. Maulucci,
Judge.
Ryan J. Simmons, pro se.
LaROSE, Chief Judge.
Ryan J. Simmons, pro se, appeals the postconviction court's order
summarily denying his motion for return of property. See Fla. R. App. P. 9.141(b)(2);
Bolden v. State, 875 So. 2d 780, 782 n.3 (Fla. 2d DCA 2004). The postconviction court
denied the motion as untimely but failed to attach the judgment and sentence. We
reverse and remand for the postconviction court to attach portions of the record that
conclusively refute Mr. Simmons' claim or hold an evidentiary hearing on the matter.
See Almeda v. State, 959 So. 2d 806, 809 (Fla. 2d DCA 2007) ("[I]f the circuit court
deemed the motion's allegations to be facially sufficient, the circuit court should have
either attached portions of the record that conclusively refuted Mr. Almeda's claim or
held an evidentiary hearing."); Stevens v. State, 929 So. 2d 1197, 1197 (Fla. 2d DCA
2006).
Reversed and remanded with instructions.
MORRIS and SALARIO, JJ., Concur.
-2-