05-2465 TORREALBA V. STATE

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 05-2465 TORREALBA V. STATE

Case Date: 11/22/2006

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 JULY TERM, A.D. 2006

ROSA E. TORREALBA, Appellant, vs. THE STATE OF FLORIDA, Appellee.

** ** ** ** ** ** LOWER TRIBUNAL NO. 00-40261 CASE NO. 3D05-2465

Opinion filed November 22, 2006. An Appeal under Florida Rule of Appellate Procedure 9.141(b) (2) from the Circuit Court for Miami-Dade County, Jorge Perez, Judge. Rosa E. Torrealba, in proper person. Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee. Before COPE, C.J., and GERSTEN and SUAREZ, JJ. On Rehearing Granted COPE, C.J.

On consideration of the State's motion for rehearing, the court withdraws its previous opinion and substitutes the

following opinion. Rosa Elena Torrealba appeals an order denying her motion for postconviction relief under Florida Rule of Criminal

Procedure 3.850.

We affirm in part and reverse in part.

In the trial court, the State filed an amended response to the motion of defendant-appellant Torrealba. The trial court

summarily denied the motion and defendant-appellant Torrealba has appealed. The record conclusively refutes all of the defendant's

claims except points nine and twelve. except nine and twelve. We return on the matter to the

We affirm on all points

trial

court On

for

further from a

consideration

points

nine

and

twelve.

appeal

summary denial of a Rule 3.850 motion, this court must reverse unless the postconviction is entitled to record no shows conclusively See Fla. R. that App. the P.

appellant

relief.

9.141(b)(2)(D). scoring contain victim the

On point nine the defendant claims an error in injury. The record now before us does not or the

sentencing order, and

guidelines does not

scoresheet, conclusively

verdict, refute

sentencing

defendant's claim.

2

On point twelve, the defendant appears to claim that there is an error on the verdict form regarding lesser included

offenses. that cited the

The State's amended response on point twelve argued defendant of waived the lesser included contains offenses, no such but the

portion

transcript

waiver.

Further, the trial transcript elsewhere reflects that the jury was instructed on lesser included offenses. relevant record excerpts, the present In the absence of record does not

conclusively refute this claim. For the stated reasons we reverse the order as to points nine and twelve and remand for further proceedings. If the

trial court again enters a summary denial, it must attach as part of the postconviction record the record excerpts

conclusively showing that the appellant is not entitled to any relief. hearing. The defendant argues that the order now before us must be reversed attach in its entirety because to the the trial order court failed to Otherwise the court must conduct an evidentiary

the

transcript

excerpts

denying

relief.

This argument is without merit.

When the trial court denied the

defendant's motion, the court directed in its order that the clerk of the circuit court transmit as part of the

postconviction record several documents, including the State's amended response to the defendant's postconviction motion.

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The current version of Florida Rule of Appellate Procedure 9.141(b)(2)(A) allows the trial court to rely on record excerpts attached to the parties' pleadings. In this case the State

filed an amended response and attached excerpts from the trial transcript and pretrial hearings. court does not have to re-attach In that situation the trial the same excerpts to the

court's order. a summary

See id. (stating that postconviction record for includes the "copies motion of the motion, response, response,

denial on

reply,

order

motion,

for

rehearing,

reply, order on the motion for rehearing, and attachments to any of the foregoing, together with the certified copy of the notice of appeal."); see also Rodriguez v. State, 919 So. 2d 576, 577 n* (Fla. 3d DCA 2006); Bryant v. State, 31 Fla. L. Weekly D89, D89 n.1 (Fla. to 3d DCA Dec. 28, 2005). trial The court record excerpts were

attached

the

State's

amended

response

properly considered by the trial court, and this court. Affirmed in part, reversed in part and remanded for further proceedings consistent herewith.

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