                                         IN THE DISTRICT COURT OF APPEAL
                                         FIRST DISTRICT, STATE OF FLORIDA

PHILLIP WASHINGTON,                      NOT FINAL UNTIL TIME EXPIRES TO
                                         FILE MOTION FOR REHEARING AND
      Appellant,                         DISPOSITION THEREOF IF FILED

v.                                       CASE NO. 1D16-1629

STATE OF FLORIDA,

      Appellee.


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Opinion filed October 4, 2016.

An appeal from the Circuit Court for Alachua County.
Mark W. Moseley, Judge.

Phillip Washington, pro se, Appellant.

Pamela Jo Bondi, Attorney General, for Appellee.




PER CURIAM.

      Appellant, Phillip Washington, challenges the trial court’s summary denial of

his motion for postconviction relief filed pursuant to Florida Rule of Criminal

Procedure 3.850. We reverse the denial of Ground 2(D) and part of Ground 2(E) for
the reasons that follow, but otherwise affirm the denial of the motion without further

discussion.

      In Ground 2(D) of his postconviction motion, Appellant argued that trial

counsel rendered ineffective assistance in failing to make an adequate motion for

judgment of acquittal and in not arguing that the State failed to prove Counts 1 and

3, which charged him with the attempted first-degree murder and attempted felony

murder of Meena Narielwala. According to Appellant, there was no sufficient and

competent evidence of the shooting and discharging of a firearm elements as to Mrs.

Narielwala because Mr. Narielwala testified that one of the perpetrators tried to

shoot him and she testified that she saw the gun pointed at her husband. In Ground

2(E), Appellant contended in part that trial counsel rendered ineffective assistance

in failing to move for a new trial so as to allow for a determination of whether he

was convicted under Counts 1 and 3 of crimes that never happened.

      We reverse the summary denial of these two claims contained in Grounds

2(D) and (E) because the trial court did not provide record attachments refuting

them, and remand to the trial court for an evidentiary hearing or to refute the claims

with record attachments. See Valentine v. State, 98 So. 3d 44, 54 (Fla. 2012)

(explaining that the defendant is entitled to an evidentiary hearing unless the

postconviction motion and record conclusively show he is not entitled to relief or

the motion or claim is legally insufficient and that in reviewing a trial court’s

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summary denial of a postconviction claim, the factual allegations must be accepted

as true to the extent they are not refuted by the record); Massie v. State, 947 So. 2d

1189, 1190 (Fla. 1st DCA 2007) (stating that the summary denial of a postconviction

motion is improper where the trial court did not provide record attachments refuting

the defendant’s claim). Our reversal is limited to Count 3 given that Count 1 was

dismissed and Appellant thus cannot show prejudice as to that count. See Victorino

v. State, 127 So. 3d 478, 486 (Fla. 2013) (explaining that in order to prevail on an

ineffective assistance of counsel claim, the defendant must prove that his trial

counsel’s performance was deficient and the deficient performance was prejudicial

for it deprived him of a fair trial).

       AFFIRMED in part, REVERSED in part, and REMANDED with

instructions.

WOLF, LEWIS, and OSTERHAUS, JJ., CONCUR.




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