               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT



ROBERT FORTE,                                )
                                             )
              Appellant,                     )
                                             )
v.                                           )         Case No. 2D15-915
                                             )
STATE OF FLORIDA,                            )
                                             )
              Appellee.                      )
                                             )

Opinion filed April 20, 2016.

Appeal from the Circuit Court for
Hillsborough County; Kimberly K.
Fernandez, Judge.

Robert Forte, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Lisa Martin, Assistant
Attorney General, Tampa, for Appellee.




BLACK, Judge.

              Robert Forte challenges the denial of his motion for postconviction relief

filed pursuant to Florida Rule of Criminal Procedure 3.850. Of the nine claims Forte

raises on appeal, we find merit in two.
              Forte was found guilty of robbery with a firearm, carjacking with a firearm,

carrying a concealed firearm, possession of a firearm on school property, fleeing and

attempting to elude a police officer, and obstructing or opposing an officer without

violence. He was sentenced to life in prison with a ten-year minimum mandatory term

on the robbery and carjacking convictions, to ten years as a habitual felony offender on

the carrying, possession, and fleeing convictions, and to time served on the obstructing

conviction. This court affirmed his judgment and sentences. Forte v. State, 65 So. 3d

521 (Fla. 2d DCA 2011) (table decision).

              In his first and fifth issues Forte argued that his trial counsel was

ineffective for failing to request a continuance in order to depose Forte's codefendant

and in failing to call Forte's codefendant as a witness at trial. The postconviction court

ordered a response from the State. The State attached the hearing transcript from the

codefendant's motion for postconviction relief where Forte's codefendant testified that

on the night in question he blacked out and did not recall the events.

              Although the postconviction court attached the transcript from the

codefendant's hearing to the order denying Forte's claims, that transcript was not part of

Forte's record and the postconviction court erred in relying on it to deny the claims. See

Ciambrone v. State, 128 So. 3d 227, 232 (Fla. 2d DCA 2013) ("[T]he postconviction

court could not rely on the transcript of Joseph Ciambrone's trial to summarily deny

relief [in Heather Ciambrone's case]."); Cintron v. State, 504 So. 2d 795, 796 (Fla. 2d

DCA 1987) (holding that the phrase "files and records" as used in rule 3.850 excludes

matters outside the official court record); see also Maddry v. State, 649 So. 2d 334, 335

(Fla. 1st DCA 1995) ("The affidavit of a single witness, which was not a part of the




                                            -2-
record at the time the motion was filed, cannot be employed to refute Maddry's claims of

ineffective assistance of counsel, or to obviate the necessity of an evidentiary hearing.");

Havis v. State, 555 So. 2d 417, 418 (Fla. 1st DCA 1989) ("The phrase 'files and records'

does not include factual affidavits presented to the court after the motion has been filed.

Rather, this affidavit raises a new factual matter which must be considered at an

evidentiary hearing on the motion.").

              The State argues that because the codefendant had not been sentenced

when Forte proceeded to trial the codefendant could have invoked his Fifth Amendment

right. However, nothing in the limited record before us supports the State's contention.

              We reverse the summary denial of claims one and five and remand for the

postconviction court to either attach documents that are properly before it and that

conclusively refute Forte's allegations or hold an evidentiary hearing on these issues.

See Ciambrone, 128 So. 3d at 232. We affirm without comment the denial of Forte's

remaining claims.

              Affirmed in part; reversed in part; remanded.



KHOUZAM and SALARIO, JJ., Concur.




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