11-2896 KYLE RAY HIMES v. STATE OF FLORIDA

State: Florida

Court: Florida First District Court

Docket No: 11-2896

Case Date: 03/14/2012

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA KYLE RAY HIMES, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________/ Opinion filed March 14, 2012. An appeal from the Circuit Court for Nassau County. Robert M. Foster, Judge. Frank J. Tassone, Jacksonville, for Appellant. Pamela Jo Bondi, Attorney General; Ralph F. Guerra and and Edward C. Hill, Jr., Assistant Attorneys General, Tallahassee, for Appellee. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D11-2896

PER CURIAM. Kyle Ray Himes appeals the circuit court's summary denial of his amended motion for post-conviction relief filed pursuant to Florida Rule of Criminal

Procedure 3.850. Himes raised seven claims in the amended motion. Without attaching portions of the record, or holding an evidentiary hearing, the circuit court denied Himes' claims. Himes raises seven issues on appeal, arguing that the circuit court erred in summarily denying his claims without attaching portions of the record or holding an evidentiary hearing. After reviewing Himes' brief, this court issued an order pursuant to Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986), directing the state to file a response addressing the claims raised by Himes in this appeal. The state filed a Response to the Toler Order, conceding that the order on appeal should be remanded for the circuit court to attach portions of the record or to hold an evidentiary hearing. We agree. Accordingly, we reverse the order on appeal and remand for the trial court to attach portions of the record or to hold an evidentiary hearing for all claims except the fifth claim. 1

BENTON, C.J., ROWE, and RAY, JJ., CONCUR.

1

The circuit court sufficiently stated its rationale for denying this claim. See Diaz v. Dugger, 719 So. 2d 865, 867 (Fla. 1998). 2

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