O'BRIEN v. State

3 So. 3d 439, 2009 Fla. App. LEXIS 3515, 2009 WL 485087

Opinion

PER CURIAM.

John D. O’Brien, Jr., appeals from the summary denial of his eleven-claim motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s order as to all issues except the denial of O’Brien’s tenth claim, which alleged that his trial counsel failed to communicate a plea offer to him that he would have accepted, resulting in a lesser sentence. See Wright v. State, 892 So.2d 1209, 1210 (Fla. 5th DCA 2005). Although it appears from the State’s response below that this claim also lacks merit, the response relies on non-record documents and statements that cannot sustain a summary denial. See, e.g., Harich v. State, 484 So.2d 1239, 1240 (Fla.1986) (a reviewing court must treat the properly sworn allegations of a 3.850 motion as true unless they are conclusively rebutted by the record). Accordingly, we reverse in part and remand with instructions that the trial court conduct an evidentiary hearing on O’Brien’s tenth claim, and affirm the order on appeal in all other respects.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS.

PALMER, C.J., ORFINGER and LAWSON, JJ., concur.