       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                        LINA NICKIE DUNKLEY,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D18-3063

                              [May 8, 2019]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Dennis D. Bailey,
Judge; L.T. Case No. 15-12218CF10A.

  Craig J. Trocino of Michael A. Gottlieb, P.A., Fort Lauderdale, for
appellant.

   Ashley B. Moody, Attorney General, Tallahassee, and Mitchell Egber,
Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   Lina Dunkley, proceeding pro se, appeals the trial court’s denial of her
Florida Rule of Criminal Procedure 3.850 motion for postconviction relief.
After ordering the State to respond to the motion, the trial court summarily
denied Dunkley’s motion without waiting for a State response and without
attaching portions of the record which conclusively refute her claims. As
the State concedes on appeal, this was reversible error, requiring remand.

      A postconviction court’s decision of whether to grant an
      evidentiary hearing on a rule 3.850 motion is ultimately based
      on written materials before the court. Therefore, the court’s
      ruling is tantamount to a pure question of law, subject to de
      novo review. See Van Poyck v. State, 961 So. 2d 220, 224 (Fla.
      2007). When reviewing the summary denial of a claim raised
      in a rule 3.850 motion, the court must accept the movant’s
      factual allegations as true to the extent that they are not
      refuted by the record. Occhicone[ v. State, 768 So. 2d 1037,
      1041 (Fla. 2000)]. Generally, a defendant is entitled to an
      evidentiary hearing on a rule 3.850 motion unless: (1) the
      motion, files, and records in the case conclusively
      demonstrate that the movant is entitled to no relief; or (2) the
      motion or particular claim is legally insufficient. Freeman v.
      State, 761 So. 2d 1055, 1061 (Fla. 2000). The defendant bears
      the burden of establishing a prima facie case based on a
      legally valid claim; mere conclusory allegations are
      insufficient. Id.

Jennings v. State, 123 So. 3d 1101, 1121 (Fla. 2013).

    In denying the motion without an evidentiary hearing, the trial court
stated in some detail its analysis and reasons for denying the motion.
However, as noted above, the State concedes that the trial court’s order
does not comply with the rule because no documents were attached to the
order and the trial court did not incorporate by reference a response by
the State which contained attachments showing documents in the lower
tribunal record refuting the claim. The order does not indicate that the
motion was denied as untimely or that the motion was insufficient on its
face. Rather than accepting all of Dunkley’s allegations in the motion as
true, many of the statements explaining the trial court’s reason for denial
appear to be based on the trial court’s conclusions about what happened
on the record, with no attachments to support the conclusions.

   Rule 3.850(f)(5) provides:

      If the motion is legally sufficient but all grounds in the motion
      can be conclusively resolved either as a matter of law or by
      reliance upon the records in the case, the motion shall be
      denied without a hearing by the entry of a final order. If the
      denial is based on the records in the case, a copy of that
      portion of the files and records that conclusively shows that
      the defendant is entitled to no relief shall be attached to the
      final order.

Fla. R. Crim. P. 3.850(f)(5). When an appeal is filed as to an order that
denies rule 3.850 relief without an evidentiary hearing, Florida Rule of
Appellate Procedure 9.141(b)(2)(A) requires the clerk of the lower tribunal
to “electronically transmit to the court, as the record, the motion,
response, reply, order on the motion, motion for rehearing, response,
reply, order on the motion for rehearing, . . . and attachments to any of
the foregoing, together with the certified copy of the notice of appeal.” Fla.
R. App. P. 9.141(b)(2)(A). Rule 9.141 further provides that “[o]n appeal
from the denial of [rule 3.850] relief, unless the record shows conclusively


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that the appellant is entitled to no relief, the order shall be reversed and
the cause remanded for an evidentiary hearing or other appropriate relief.”
Fla. R. App. P. 9.141(b)(2)(D). The record simply does not support the
grounds asserted by the trial court for denying the motion.

   Accordingly, we reverse and remand for an evidentiary hearing or for
the attachment of records conclusively refuting Dunkley’s claims. See
Williams v. State, 141 So. 3d 686, 687 (Fla. 4th DCA 2014) (construing
Florida Rule of Criminal Procedure 3.801(e), which incorporates rule
3.850(f)(5), as requiring order denying relief to attach records conclusively
refuting the motion).

   Reversed and remanded.

WARNER, GROSS and CONNER, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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