Holmes v. State

35 So. 3d 951, 2010 Fla. App. LEXIS 6137, 2010 WL 1779944

Opinion

SHEPHERD, J.

This is an appeal from an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. The defendant, Mark Holmes, raises four grounds of ineffective assistance of counsel in his motion. We affirm grounds one and four, finding those claims do not have merit. As for grounds two and three, where the defendant alleges his trial counsel failed to adequately prepare for the competency hearing and call two witnesses for his defense, we reverse because the post-conviction record does not conclusively show the defendant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D). The record now before us merely includes the motion for post-conviction relief, an affidavit of Patricia Silvers, and the trial court’s order. Thus, we reverse the order and remand for an evidentiary hearing or for the attachment of record excerpts conclusively showing the appellant is entitled to no relief.

Reversed, in part, and remanded for further proceedings.