Kresge v. State

District Court of Appeal of Florida

Kresge v. State

22 So. 3d 694, 2009 Fla. App. LEXIS 16733, 2009 WL 3734554

CourtDistrict Court of Appeal of Florida

DecidedNovember 10, 2009

DocketNo. 1D09-2746

StatusPublished

Cited by1 cases

This text of 22 So. 3d 694 (Kresge 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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Kresge v. State, 22 So. 3d 694, 2009 Fla. App. LEXIS 16733, 2009 WL 3734554 (Fla. Ct. App. 2009).

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Opinion

PER CURIAM.

Thomas Kresge appeals the trial court’s summary denial of his postconviction motion alleging- that counsel ineffectively failed to file a motion to suppress his confession. We reverse.

Following an officer’s warrantless entry into the appellant’s residence, the appellant confessed to unlawful sexual activity with a minor. At trial, defense counsel failed to file a motion to suppress the appellant’s confession as fruit of the poisonous tree. See State v. Rheiner, 297 So.2d 130, 134-35 (Fla. 2d DCA 1974). The appellant argues that the outcome of his case would have been different had counsel filed the motion. As the State concedes, the trial court did not attach record portions conclusively refuting the appellant’s claim.

Because the record now before us fails to contain the required showing, we reverse the trial court’s order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

REVERSED AND REMANDED for further proceedings.

BARFIELD and CLARK, JJ., and BROWNING, JR., EDWIN B., Senior Judge, concur.

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PER CURIAM.

Thomas Kresge appeals the trial court’s summary denial of his postconviction motion alleging- that counsel ineffectively failed to file a motion to suppress his confession. We reverse.

Following an officer’s warrantless entry into the appellant’s residence, the appellant confessed to unlawful sexual activity with a minor. At trial, defense counsel failed to file a motion to suppress the appellant’s confession as fruit of the poisonous tree. See State v. Rheiner, 297 So.2d 130, 134-35 (Fla. 2d DCA 1974). The appellant argues that the outcome of his case would have been different had counsel filed the motion. As the State concedes, the trial court did not attach record portions conclusively refuting the appellant’s claim.

Because the record now before us fails to contain the required showing, we reverse the trial court’s order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

REVERSED AND REMANDED for further proceedings.

BARFIELD and CLARK, JJ., and BROWNING, JR., EDWIN B., Senior Judge, concur.

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22 So. 3d 694, 2009 Fla. App. LEXIS 16733, 2009 WL 3734554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kresge-v-state-fladistctapp-2009.

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