JEFFERY WILSON
v.
STATE OF FLORIDA
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When a postconviction court summarily denies a motion for ineffective assistance of counsel without an evidentiary hearing and the appellate record does not refute the factual allegations, the claim must be remanded for an evidentiary hearing.
[1] A postconviction court must hold an evidentiary hearing when the record does not refute the appellant's factual allegations of ineffective assistance of counsel.
[2] When no evidentiary hearing is held, an appellate court must accept the appellant's factual allegations as true to the extent they are not refuted by the record.
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The court explaining the standard of review for unheard postconviction claims.
Jeffery Wilson appealed a summary denial of postconviction relief on ten grounds of ineffective assistance of counsel. Grounds C and J alleged that tr…
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October 23, 2019 PER CURIAM.
On appeal, we review the postconviction court’s summarily denied order on the appellant’s motion for postconviction relief. In his motion for postconviction relief, the appellant raised ten grounds of ineffective assistance of counsel. We find no error except with regards to grounds C and J, which are related. Because the record does not refute the appellant’s claim, we must reverse and remand the case back to the postconviction court for it to hold an evidentiary hearing.
In grounds C and J, the appellant alleged that trial counsel was ineffective for failing to review his scoresheet with him, and had he have known his lowest permissible sentence based on the scoresheet, he would not have entered an open plea. When no
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evidentiary hearing is held below, this Court must accept the appellant’s factual allegations as true to the extent they are not refuted by the record. McLin v. State, 827 So. 2d 948, 954 (Fla. 2002). Because the record on appeal does not refute the appellant’s factual allegations on grounds C and J, we must reverse and remand the case back to the postconviction court for it to hold an evidentiary hearing on those grounds. See Fla. R. App. P. 9141(b)(2)(D). We otherwise affirm the postconviction court’s order.
AFFIRMED in part, REVERSED in part, and REMANDED with instructions.
ROBERTS and ROWE, JJ., concur; KELSEY, J., dissents without opinion.
_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.