BRANDON A. BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the postconviction court erred in summarily denying the motion without attaching relevant record portions to refute the claims.
[1] A postconviction court must attach portions of the record to its order when summarily denying a motion for relief to demonstrate that the movant is not entitled to relief…
[2] A postconviction court must conduct an evidentiary hearing if it cannot demonstrate through attached record portions that the movant is not entitled to relief.
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Join FLexlaw to unlock all legal intelligenceAppellant pleaded guilty to multiple charges, including four counts of robbery. He moved for postconviction relief, alleging double jeopardy violation…
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[*1126] NORTHCUTT, Judge.
Brandon A. Brown appeals the summary denial of his motion for postconviction relief. The posteonviction court treated the motion as filed pursuant to Florida Rule of Criminal Procedure 3.850 and summarily denied the motion on the merits. We reverse and remand for further proceedings consistent with this opinion.
After entering a non-negotiated guilty plea, Brown was sentenced on sundry charges that included four counts of robbery. In his motion for postconviction relief, Brown raised two claims. First, he contended that his double jeopardy rights were violated because two of the robbery convictions, under counts four and five, involved only one victim during one criminal episode. Second, Brown asserted that his trial counsel was ineffective for failing to research his double jeopardy claim and to object to the violation. The postconviction court, relying on the information setting forth the charges against Brown, determined that the two counts involved two separate victims and supported two separate robbery convictions. Therefore, the postconviction court concluded that Brown’s convictions and sentences under both counts did not violate his double jeopardy rights and that counsel was not ineffective.
The order summarily denying Brown’s motion for relief included no attachments, such as a plea colloquy transcript, to refute Brown’s claim that the two counts stemmed from only one robbery involving only one victim.1 Accordingly, we reverse the summary denial and remand for further proceedings. If, on remand, the post-conviction court again summarily denies Brown’s motion, it shall attach to its order portions of the record demonstrating that Brown is not entitled to relief. Otherwise, the court must conduct an evidentiary hearing on his claims.
Reversed and remanded.
STRINGER and SILBERMAN, JJ., Concur. . We note that Brown provided this court with a statement by the victim alleged in count five of the information which indicates that the victim merely observed the robbery from the convenience store's back room.
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Demps v. State, 965 So. 2d 1242 (Fla. 4th DCA 2007)…ourt. Therefore, the claim that trial counsel was ineffective in failing to raise the double jeopardy violation, which would have reduced his lowest permissible sentence, has not been conclusively refuted by the record before us. See Brown v. State, 958 So. 2d 1125 (Fla. 2d DCA 2007). We reverse the denial of appellant’s motion and remand for attachment of records [*1244] conclusively refuting the allegations or for an evidentiary hearing. FARMER and KLEIN, JJ., concur.…
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Brown v. State, 1 So. 3d 1231 (Fla. 2d DCA 2009)…ief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reversed the postconviction court’s first summary denial of the motion because the order did not include any attachments to refute Brown’s double jeopardy claims. See Brown v. State, 958 So. 2d 1125, 1126 (Fla. 2d DCA 2007). On remand, the post-conviction court again found no double jeopardy violation and summarily denied the motion, attaching to the order the information and a transcript of the plea colloquy. After reviewing Brown’s motion, th…
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