PENNY LIVINGSTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed summary denial of postconviction relief motion because trial court failed to attach required record portions under Rule 3.850(d).
A postconviction court must attach the specific portions of the record that conclusively refute a movant's allegations, not merely cite to or quote from the transcript.
[1] Florida Rule of Criminal Procedure 3.850(d) requires postconviction courts to attach specific record portions that conclusively refute a movant's allegations; citation to…
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Join FLexlaw to unlock all legal intelligence“rule 3.850(d) provides that the postconviction court shall attach a copy of the portions of the files and records that conclusively show that the movant is entitled to no relief”
Court explaining the mandatory requirement of Rule 3.850(d)
Penny Livingston appealed a summary denial of her postconviction relief motion. The postconviction court denied the motion by citing and quoting from …
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Penny Gail Livingston appeals the order summarily denying her motion for postcon-viction relief. We reverse because the postconviction court failed to comply with Florida Rule of Criminal Procedure 3.850(d).
In the order summarily denying her motion, the postconviction court began by stating, “In the event Defendant appeals this order, the Clerk of Court is directed to forward the record to the Second District Court of Appeal.” The clerk did not forward the record to this court. Even if it had, “Florida Rule of Criminal Pi'oce-dure 3.850(d) is not satisfied by merely attaching the entire record on appeal.” Banks v. State, 975 So.2d 1268, 1269 (Fla. 4th DCA 2008) (citing Hoffman v. State, 571 So.2d 449 (Fla.1990)). Rather, rule *2773.850(d) provides that the postconviction court shall attach a copy of the portions of the files and records that conclusively show that the movant is entitled to no relief. While the postconviction court refuted Livingston’s allegations by citing to the transcript and sometimes quoting from it, it did not attach the portions of the record it cited, as required by rule 3.850(d).
Accordingly, we reverse and remand with directions that the postconviction court attach those portions of the record that conclusively refute Livingston’s allegations or conduct an evidentiary hearing.
Reversed and remanded with directions.
VILLANTI and CRENSHAW, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Murphy v. State, 24 So. 3d 1220 (Fla. 2d DCA 2009)
Authorities Cited
- Hoffman v. State, 571 So. 2d 449 (Fla. 1990)
- Anna Banks v. State, 975 So. 2d 1268 (Fla. 4th DCA 2008)