Kevin Lee Elliott v. State of Florida

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

KEVIN LEE ELLIOTT, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 1D16-5527

STATE OF FLORIDA,

Appellee.

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Opinion filed September 5, 2017.

An appeal from the Circuit Court for Duval County. Russell L. Healey, Judge.

Kevin Elliot, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Kevin Lee Elliott challenges the trial court’s order denying his motion for

postconviction 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 evidentiary hearing or allow amendment of his pleadings. We reverse to require

that the trial court either attach portions of the 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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