O'Brien v. State

117 So. 3d 847, 2013 WL 3335025, 2013 Fla. App. LEXIS 10673

Opinion

PER CURIAM.

We reverse and remand the summary denial of appellant’s Rule 3.850 motion. Burton v. State, 92 So.3d 305 (Fla. 4th DCA 2012). The trial court denied the motion without explanation, indicating it had reviewed “the State’s Response.” As the State concedes in this appeal, no State response was in fact filed below. Appellant pointed out in his motion for rehearing that he had not received an order requiring a State response or any such response from the State. The court denied rehearing without explanation.

The court was required to explain the basis for denial or attach portions of the record conclusively refuting the claim. Anderson v. State, 627 So.2d 1170, 1171 (Fla.1993) (“To support summary denial without a hearing, a trial court must either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion.”) The case is reversed and remanded for this purpose.

Reversed and remanded.

MAY, CONNER and FORST, JJ., concur.