Kevin Lee Elliott v. State of Florida

District Court of Appeal of Florida

Kevin Lee Elliott v. State of Florida

225 So. 3d 414, 2017 Fla. App. LEXIS 12713, 2017 WL 3864048

CourtDistrict Court of Appeal of Florida

DecidedSeptember 5, 2017

DocketCASE NO. 1D16-5527

StatusPublished

This text of 225 So. 3d 414 (Kevin Lee Elliott v. State of Florida) 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.

Bluebook

Kevin Lee Elliott v. State of Florida, 225 So. 3d 414, 2017 Fla. App. LEXIS 12713, 2017 WL 3864048 (Fla. Ct. App. 2017).

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Opinion

PER CURIAM.

Kevin Lee Elliott challenges the trial court’s order denying his motion for post-conviction relief, which failed to attach records that conclusively demonstrate no entitlement to relief. In addition, he challenges the trial court’s failure to conduct an evi-dentiary hearing or allow amendment of his pleadings. We reverse to require that the trial court either attach portions of the *415 record that conclusively refute Elliott’s claims in counts one, four, seven, and eight of his complaint, or absent such records, hold an evidentiary hearing. See Washington v. State, 10 So.3d 1126, 1127 (Fla. 1st DCA 2009) (Absent attachment of portions of the record that conclusively refute claims, a “summary denial is improper, and an evidentiary hearing is required.”). As to other counts, Elliott should be given the opportunity to amend his claim. See Spera v. State, 971 So.2d 754, 762 (Fla. 2007) (“[W]hen a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion.”).

REVERSED AND REMANDED.

WOLF, MAKAR, and M.K. THOMAS, JJ., CONCUR.

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PER CURIAM.

Kevin Lee Elliott challenges the trial court’s order denying his motion for post-conviction relief, which failed to attach records that conclusively demonstrate no entitlement to relief. In addition, he challenges the trial court’s failure to conduct an evi-dentiary hearing or allow amendment of his pleadings. We reverse to require that the trial court either attach portions of the *415 record that conclusively refute Elliott’s claims in counts one, four, seven, and eight of his complaint, or absent such records, hold an evidentiary hearing. See Washington v. State, 10 So.3d 1126, 1127 (Fla. 1st DCA 2009) (Absent attachment of portions of the record that conclusively refute claims, a “summary denial is improper, and an evidentiary hearing is required.”). As to other counts, Elliott should be given the opportunity to amend his claim. See Spera v. State, 971 So.2d 754, 762 (Fla. 2007) (“[W]hen a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion.”).

REVERSED AND REMANDED.

WOLF, MAKAR, and M.K. THOMAS, JJ., CONCUR.

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Bluebook (online)

225 So. 3d 414, 2017 Fla. App. LEXIS 12713, 2017 WL 3864048, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kevin-lee-elliott-v-state-of-florida-fladistctapp-2017.

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