RAPHAEL GILBERT SURINACH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Raphael Gilbert Surinach appeals an order summarily denying his rule 3.850 motion. We affirm the summary denial of his third ground for relief without further discussion, finding the claim lacked merit, but we reverse the summary denial of the other two claims.
In summarily denying the appellant’s motion for postconviction relief, the post-conviction court relied on documents (one being an unauthenticated transcript purporting to represent the appellant’s taped confession to law enforcement), which the state admits were not part of the trial court’s files or records below until they were attached to the state’s response to the motion. This was error. Fla. R.Crim. P. 3.850(d); Smalls v. State, 18 So.3d 606, 608 (Fla. 1st DCA 2009); Johnson v. State, 736 So.2d 713, 714 (Fla. 2d DCA 1999). See also Cortinas v. State, 91 So.3d 903, 904 (Fla. 4th DCA 2012).
Affirmed in part; reversed in part and remanded for further proceedings.
WARNER, GROSS and TAYLOR, JJ., concur.
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Michel v. State, 134 So. 3d 509 (Fla. 4th DCA 2014)…7 So. 2d 440, 443 (Fla. 4th DCA 2007) (citing Roberts v. State, 874 So. 2d 1225 (Fla. 4th DCA 2004)); see also Velazquez v. State, 973 So. 2d 1206, 1207 (Fla. 2d DCA 2008). Neither is refuted by the record furnished. See generally Surinach v. State, 111 So. 3d 186 (Fla. 4th DCA 2013); Canete v. State, 921 So. 2d 687 (Fla. 4th DCA 2006) (en banc). We reverse the summary denial of claims one and six and remand with directions for the trial court to attach portions of the record that conclusively refute appella…
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Cabrera v. State (Fla. 4th DCA 2021)…rejected the first claim, because the state had furnished the trial court with a DNA testing report. However, the report post-dates 2 appellant’s motion and was not part of the record at the time of appellant’s plea. See Surinach v. State, 111 So. 3d 186 (Fla. 4th DCA 2013) (reversing denial of rule 3.850 motion where state admitted the postconviction court relied on documents which were not part of the court’s files or records until the documents were attached to the state’s response to the moti…
Authorities Cited
- Johnson v. State, 736 So. 2d 713 (Fla. 2d DCA 1999)
- Smalls v. State, 18 So. 3d 606 (Fla. 1st DCA 2009)
- Cortinas v. State, 91 So. 3d 903 (Fla. 4th DCA 2012)