         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                   NOT FINAL UNTIL TIME EXPIRES TO
                                                   FILE MOTION FOR REHEARING AND
                                                   DISPOSITION THEREOF IF FILED


FREDERICK ADDISON,

              Appellant,

 v.                                                        Case No. 5D17-2692

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed December 22, 2017

3.850 Appeal from the Circuit Court
for Citrus County,
Richard A. Howard, Judge.

Frederick Addison, Bristol, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Nora Hutchinson Hall,
Assistant Attorney General, Daytona
Beach, for Appellee.


PER CURIAM.

       Frederick Addison appeals the summary denial of his motion for postconviction

relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the record

does not conclusively refute Addison’s claim that counsel was ineffective for failing to

depose or call the victim to testify for mitigation purposes at his sentencing on the violation

of probation, we reverse the order summarily denying his motion and remand for
attachment of portions of the record conclusively refuting the claim or for an evidentiary

hearing. See Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000) ("[A] defendant is

entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion,

files, and records in the case conclusively show that the prisoner is entitled to no relief,

or (2) the motion or a particular claim is legally insufficient." (citing Maharaj v. State, 684

So. 2d 726 (Fla. 1996))).

       REVERSED and REMANDED.

ORFINGER, BERGER and WALLIS, JJ., concur.




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