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892 So. 2d 541

Fitzgerald v. State

District Court of Appeal of Florida

Decided January 24, 2005

District Court of Appeal of Florida · decided 2005-01-24

Cited by 3 later decisions — most recently May 2011

3 state decisions

Relies on 685 So. 2d 879 - Jennings v. State · Mims v. State

Good law ✅— No negative treatment on recordhow we know

Decided 2005-01-24

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PER CURIAM.

¶1This is an appeal from the trial court’s summary denial of Appellant’s postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court failed to attach portions of the record to conclusively refute Appellant’s claim of misadvice, we reverse. We affirm all other issues raised on appeal without further discussion.

¶2In his motion, Appellant made a facially sufficient claim that his counsel misadvised him about the consequences of testifying. Jennings v. State, 685 So.2d 879 (Fla. 2d DCA 1996). The trial court improperly relied on extra-record information to deny Appellant’s motion without an evidentiary hearing. Mims v. State, 672 So.2d 662 (Fla. 1st DCA 1996). We, therefore, reverse the trial court’s summary denial of this claim and remand either for further attachment of record portions to refute Appellant’s claim or for an evidentiary hearing.

¶3AFFIRMED, in part, REVERSED, in part, and REMANDED.

BENTON, LEWIS and THOMAS, JJ., concur.
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