Stewart v. State

902 So. 2d 879, 2005 Fla. App. LEXIS 8010, 2005 WL 1249066

Opinion

BROWNING, J.

Reversal is required in this appeal from the summary denial of Appellant’s postcon-viction motion for relief under Florida Rule of Criminal Procedure 3.850, because the trial court failed to attach portions of the record that refute Appellant’s claims. See, e.g., Johnson v. State, 840 So.2d 369 (Fla. 1st DCA 2003). Although the trial court found that any error was harmless, this Court will not presume harmlessness. See Banks v. State, 673 So.2d 937 (Fla. 1st DCA 1996). On remand, the trial court is directed to attach the portions which refute the claims. In the alternative, the trial court may hold an evidentiary hearing on Appellant’s claims.

REVERSED AND REMANDED.

WOLF, C.J.; and DAVIS, J., concur.