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


                                               IN THE DISTRICT COURT OF APPEAL

                                               OF FLORIDA

                                               SECOND DISTRICT


ANTONIO D. FOSTER, DOC #H32344,                )
                                               )
              Appellant,                       )
                                               )
v.                                             )          Case No. 2D18-2136
                                               )
STATE OF FLORIDA,                              )
                                               )
              Appellee.                        )
                                               )

Opinion filed August 2, 2019.

Appeal from the Circuit Court for Polk
County; William D. Sites, Judge.



SALARIO, Judge.

              Antonio Foster appeals from a final order summarily denying his motion

for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We

reverse insofar as his motion alleged facially sufficient claims that were not refuted by

the record related to three potential witnesses that Mr. Foster asserts were not called to

testify at his second trial. In all other respects, including the postconviction court's

summary denial of claims related to witnesses other than the three described in this

opinion, we affirm the order without further comment.

              After a jury trial, Mr. Foster was convicted of one count of second-degree

murder and one count of shooting into an occupied vehicle. In his motion for
postconviction relief, he alleged that his trial counsel failed to ensure that three

witnesses—Michael Grimsley, Jeremy Goldwire, and Sametria Adams—were present at

trial and ready to testify. He alleged that these witnesses would give testimony that

would impeach the State witness identifying him as the perpetrator and disprove the

State's theory that there was a single gun and a single shooter. Upon our de novo

review of the order, we conclude that the claims were sufficiently pleaded.1 See, e.g.,

Penton v. State, 262 So. 3d 253, 256, 258 (Fla. 2d DCA 2018).

              Moreover, the denials of these claims were not conclusively refuted by the

portions of the record attached to the postconviction court's order. See Fla. R. Crim. P.

3.850(f)(4). The postconviction court did not attach any portions of the record to refute

the claims concerning Mr. Grimsley and did not address Mr. Goldwire's related putative

testimony at all. See Anderson v. State, 787 So. 2d 62, 63 (Fla. 2d DCA 2001) ("To

support summary denial without a hearing, a trial court must either state its rationale in

its decision or attach those specific parts of the record that refute each claim presented

in the motion."). Regarding Ms. Adams, who the denial order mistakenly refers to by the

surname Jones, the limited record attached to the order does not refute Mr. Foster's




              1We   disagree with the postconviction court that Mr. Foster's claims
concerning Mr. Grimsley are factually inconsistent. Mr. Foster asserts in one claim that
Mr. Grimsley was available to testify and that trial counsel was ineffective for failing to
present him, and in another he alleges that trial counsel was ineffective for not having
Mr. Grimsley's testimony from a prior trial admitted if Mr. Grimsley was not available.
The trial court should have regarded these claims as alternatives: Both claims are
sufficiently pleaded, and unless one or the other is conclusively refuted by the record,
an evidentiary hearing would be required. See, e.g., Jancar v. State, 711 So. 2d 143,
144 (Fla. 2d DCA 1998) ("The contradiction was not between the underlying evidentiary
facts alleged in the motion, but between the alternative ultimate conclusions that could
be derived from the single set of underlying facts.").

                                             -2-
allegations that she would have disputed some of the State's identity witness's

testimony.

              Accordingly, we reverse and remand for the postconviction court to

reconsider the claims that relate to these witnesses and either to attach portions of the

record that supports the summary denial of these claims or to hold an evidentiary

hearing. See Green v. State, 827 So. 2d 1060, 1061 (Fla. 2d DCA 2002); Anderson,

787 So. 2d at 63.

              Affirmed in part; reversed in part; remanded.


BLACK and BADALAMENTI, JJ., Concur.




                                           -3-
