          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                          No. 1D18-4413
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JEFFERY WILSON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Duval County.
Marianne L. Aho, Judge.

                         October 23, 2019


PER CURIAM.

     On appeal, we review the postconviction court’s summarily
denied order on the appellant’s motion for postconviction relief. In
his motion for postconviction relief, the appellant raised ten
grounds of ineffective assistance of counsel. We find no error except
with regards to grounds C and J, which are related. Because the
record does not refute the appellant’s claim, we must reverse and
remand the case back to the postconviction court for it to hold an
evidentiary hearing.

     In grounds C and J, the appellant alleged that trial counsel
was ineffective for failing to review his scoresheet with him, and
had he have known his lowest permissible sentence based on the
scoresheet, he would not have entered an open plea. When no
evidentiary hearing is held below, this Court must accept the
appellant’s factual allegations as true to the extent they are not
refuted by the record. McLin v. State, 827 So. 2d 948, 954 (Fla.
2002). Because the record on appeal does not refute the appellant’s
factual allegations on grounds C and J, we must reverse and
remand the case back to the postconviction court for it to hold an
evidentiary hearing on those grounds. See Fla. R. App. P.
9141(b)(2)(D). We otherwise affirm the postconviction court’s
order.

     AFFIRMED in part, REVERSED in part, and REMANDED with
instructions.

ROBERTS and ROWE, JJ., concur; KELSEY, J., dissents without
opinion.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Jeffery Wilson, pro se, Appellant.

Ashley Moody, Attorney General, and Anne C. Conley, Assistant
General Counsel, Tallahassee, for Appellee.




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