Summary
reversing denial of rule 3.850 motion where state admitted the postconviction court relied on documents which were not part of the court's files or records until the documents were attached to the state's response to the motion
Summary of this case from Cabrera v. StateOpinion
No. 4D11–4675.
2013-01-23
Raphael Gilbert SURINACH, Appellant, v. STATE of florida, Appellee.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jeffrey J. Colbath, Judge; L.T. Case No. 2008CF018143AXX. Raphael Gilbert Surinach, Okeechobee, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jeffrey J. Colbath, Judge; L.T. Case No. 2008CF018143AXX.
Raphael Gilbert Surinach, Okeechobee, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Raphael Gilbert Surinach appeals an order summarily denying his rule 3.850 motion. We affirm the summary denial of his third ground for relief without further discussion, finding the claim lacked merit, but we reverse the summary denial of the other two claims.
In summarily denying the appellant's motion for postconviction relief, the postconviction court relied on documents (one being an unauthenticated transcript purporting to represent the appellant's taped confession to law enforcement), which the state admits were not part of the trial court's files or records below until they were attached to the state's response to the motion. This was error. Fla. R.Crim. P. 3.850(d); Smalls v. State, 18 So.3d 606, 608 (Fla. 1st DCA 2009); Johnson v. State, 736 So.2d 713, 714 (Fla. 2d DCA 1999). See also Cortinas v. State, 91 So.3d 903, 904 (Fla. 4th DCA 2012).
Affirmed in part; reversed in part and remanded for further proceedings.