05-2668 GARDNER V. STATE

State: Florida

Court: Florida Southern District Court

Docket No: 3d05-2668

Case Date: 04/12/2006

Plaintiff: 05-2668 GARDNER

Defendant: STATE

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2006 DONNELL GARDNER, ** Appellant, ** vs. ** THE STATE OF FLORIDA, ** Appellee. ** Opinion filed April 5, 2006. An Appeal under Florida Rule 9.141(b)(2) from the Circuit Court Cristina Pereyra-Shuminer, Judge. Donnell Gardner, in proper person. Charles J. Crist, Jr., Attorney General, for appellee. of Appellate Procedure for Miami-Dade County, LOWER TRIBUNAL CASE NOS. 00-32310 00-32382 CASE NO. 3D05-2668

Before GERSTEN, FLETCHER, and SUAREZ, JJ. PER CURIAM. This is an appeal of an order denying a motion under

Florida Rule of Criminal Procedure 3.850.

Although the trial

court indicates on the order that the denial was pursuant to an evidentiary hearing, it is in the form of a summary denial and

no

transcripts

or

record

are

attached

in

support

of

the

decision.

On appeal from a summary denial, this court must

reverse unless the postconviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively See that the appellant is

entitled to no relief.

Fla. R. Crim P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief. Reversed and remanded for further proceedings.

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