Himes v. State

District Court of Appeal of Florida

Himes v. State

81 So. 3d 645, 2012 Fla. App. LEXIS 4100, 2012 WL 833125

CourtDistrict Court of Appeal of Florida

DecidedMarch 14, 2012

Docket1D11-2896

StatusPublished

This text of 81 So. 3d 645 (Himes v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Himes v. State, 81 So. 3d 645, 2012 Fla. App. LEXIS 4100, 2012 WL 833125 (Fla. Ct. App. 2012).

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Opinion

PER CURIAM.

Kyle Ray Himes appeals the circuit court’s summary denial of his amended motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Himes raised seven claims in the amended motion. Without attaching portions of the record, or holding an evi-dentiary hearing, the circuit court denied Himes’ claims.

Himes raises seven issues on appeal, arguing that the circuit court erred in summarily denying his claims without attaching portions of the record or holding an evidentiary hearing. After reviewing Himes’ brief, this court issued an order pursuant to Toler v. State, 498 So.2d 489 (Fla. 1st DCA 1986), directing the state to file a response addressing the claims raised by Himes in this appeal. The state filed a Response to the Toler Order, conceding that the order on appeal should be remanded for the circuit court to attach portions of the record or to hold an eviden-tiary hearing. We agree. Accordingly, we reverse the order on appeal and remand for the trial court to attach portions of the record or to hold an evidentiary hearing for all claims except the fifth claim. 1

BENTON, C.J., ROWE, and RAY, JJ., concur.

1

. The circuit court sufficiently stated its rationale for denying this claim. See Diaz v. Dug-ger, 719 So.2d 865, 867 (Fla.1998).

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PER CURIAM.

Kyle Ray Himes appeals the circuit court’s summary denial of his amended motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Himes raised seven claims in the amended motion. Without attaching portions of the record, or holding an evi-dentiary hearing, the circuit court denied Himes’ claims.

Himes raises seven issues on appeal, arguing that the circuit court erred in summarily denying his claims without attaching portions of the record or holding an evidentiary hearing. After reviewing Himes’ brief, this court issued an order pursuant to Toler v. State, 498 So.2d 489 (Fla. 1st DCA 1986), directing the state to file a response addressing the claims raised by Himes in this appeal. The state filed a Response to the Toler Order, conceding that the order on appeal should be remanded for the circuit court to attach portions of the record or to hold an eviden-tiary hearing. We agree. Accordingly, we reverse the order on appeal and remand for the trial court to attach portions of the record or to hold an evidentiary hearing for all claims except the fifth claim. 1

BENTON, C.J., ROWE, and RAY, JJ., concur.

1

. The circuit court sufficiently stated its rationale for denying this claim. See Diaz v. Dug-ger, 719 So.2d 865, 867 (Fla.1998).

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81 So. 3d 645, 2012 Fla. App. LEXIS 4100, 2012 WL 833125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/himes-v-state-fladistctapp-2012.

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