REGINALD DUNNELL
v.
STATE OF FLORIDA
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A trial court cannot summarily deny a postconviction relief motion based on a prosecutor's statements about video evidence when the video transcripts are not in the record, as attorney comments are not evidence.
[1] A trial court may not summarily deny a postconviction relief motion alleging ineffective assistance of counsel based on a prosecutor's statements regarding evidence when…
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Join FLexlaw to unlock all legal intelligence“the prosecutor's summary of the controlled buys is not record evidence”
The court explained why the trial court erred in relying on the prosecutor's statements to summarily deny the postconviction relief claims.
Appellant Dunnell filed a postconviction relief motion under Florida Rule of Criminal Procedure 3.850, alleging in grounds two and three that trial co…
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
REGINALD DUNNELL,
Appellant,
v. Case No. 5D19-2195
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed April 9, 2020
3.850 Appeal from the Circuit Court for St. Johns County, Howard M. Maltz, Judge.
Reginald Dunnell, Bowling Green, pro se.
Ashley Moody, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
Appellant appeals the summary denial of his Motion for Postconviction Relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the denial of grounds two and three but affirm the denial of grounds one and four without further discussion. In grounds two and three of the motion, Appellant alleged that his trial counsel was ineffective for failing to investigate an entrapment defense and for failing to file a motion to dismiss based on entrapment. In summarily denying these grounds, the trial court
2 relied on the prosecutor's statements regarding the contents of two video recordings of the controlled drug transactions. Although the record suggests that video recordings of the controlled buys were played at the sentencing hearing, transcripts of the recordings are not included in the record on appeal. Moreover, the prosecutor's summary of the controlled buys is not record evidence. See generally Raysor v. State, 276 So. 3d 121, 124 (Fla. 2d DCA 2019) (recognizing the standard jury instruction that states that comments made by attorneys are not evidence). Therefore, the record does not conclusively refute Appellant's claims of entrapment. Accordingly, we reverse the summary denial of grounds two and three and remand for the trial court to attach record evidence that conclusively refutes those claims, or to hold an evidentiary hearing. See Mitchell v. State, 238 So. 3d 411, 412 (Fla. 5th DCA 2018). AFFIRMED in Part; REVERSED in Part; REMANDED with Instructions.
EVANDER, C.J., WALLIS and GROSSHANS, JJ., concur.