Martone v. State

Full title: Thomas MARTONE, Appellant, v. STATE of Florida, Appellee

Court: District Court of Appeal of Florida, Fourth District

Date published: Mar 8, 2006

922 So. 2d 404 (Fla. Dist. Ct. App. 2006)

Opinion

No. 4D05-4538.

March 8, 2006.

Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Eileen M. O'Connor, Judge; L.T. Case No. 97-14350 CF10A.

Patrick C. Rastatter of Glass Rastatter, P.A., Ft. Lauderdale, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

We reverse the order denying appellant's Florida Rule of Criminal procedure 3.800(a) motion. The trial court failed to attach portions of the record conclusively refuting appellant's legally sufficient claim. Goldbach v. State, 906 So.2d 349 (Fla. 4th DCA 2005); Torres v. State, 830 So.2d 917 (Fla. 4th DCA 2002); Johnson v. State, 665 So.2d 380 (Fla. 4th DCA 1996); Thomas v. State, 667 So.2d 440 (Fla. 4th DCA 1996).

The state's attempt to provide such record evidence for the first time in this appeal is improper. Cuevas v. State, 907 So.2d 655 (Fla. 4th DCA 2005); Saunders v. State, 661 So.2d 134 (Fla. 4th DCA 1995).

We remand for the trial court to attach portions of the record that conclusively refute the appellant's claim or to grant appropriate relief.

GUNTHER, KLEIN and GROSS, JJ., concur.