       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           ROBERT BURKELL,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D13-4122

                               [July 8, 2015]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Raag Singhal, Judge;
L.T. Case No. 03-021532CF10A.

  Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell Egber,
Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   Robert Burkell challenges the denial of his motion filed pursuant to
Florida Rule of Criminal Procedure 3.850. The trial court summarily
denied a majority of Burkell’s claims and held an evidentiary hearing to
address others. We affirm on all but two related points and reverse and
remand for further review.

   Robert Burkell was indicted for the first degree murder of Charles
Bertheas. Bertheas lived in a room in the Burkell home. A jury found
Burkell guilty as charged and the trial court sentenced him to life in prison
without parole. The jury made a special finding that Burkell was guilty of
premeditated, as opposed to felony, murder.

   The facts of the case are set forth in this Court’s opinion that affirmed
Burkell’s direct appeal and addressed the denial of his motion for
judgment of acquittal. See Burkell v. State, 992 So. 2d 848 (Fla. 4th DCA
2008). Significantly, with respect to the victim’s injuries and cause of
death, the opinion states:

      In addition to multiple lacerations and extensive bruising, the
      victim had been struck in the eye with sufficient force to
      rupture it. Dr. Price found extensive fractures to the victim’s
      facial bones. The anterior base of his skull was also crushed.
      The cause of death was blunt force trauma to the head caused
      by between fourteen and eighteen blows, including massive
      blows to the frontal area.

Id. at 850.

   Within points one and two of his motion, Burkell alleged trial counsel
was ineffective for failing to present medical evidence that he was
physically incapable of inflicting the types of blows that must have caused
the victim’s fatal injuries. He alleged that evidence of his physical
limitations precluded him from using any weapon, be it heavy or light, or
even his bare hands.

   Burkell alleged that he has physical limitations with his right hand, left
wrist, and shoulder, all of which were verifiable through medical records.
His allegations are facially sufficient to state a prima facie claim for
ineffective assistance of counsel. See Lopez v. State, 773 So. 2d 1267,
1268 (Fla. 5th DCA 2000).

   On appeal from a summary denial of a rule 3.850 motion, this Court
must reverse “unless the [postconviction] record shows conclusively that
the appellant is entitled to no relief.” Fla. R. App. P. 9.141(b)(2)(D). When
summarily denying this claim, the trial court looked to comments in the
record to show that Burkell was not physically impaired because he
“converted the family room into a bedroom and living room area for Mr.
Bertheas.” The records before this Court do not clearly reflect that Burkell
performed the physical labor associated with the remodeling.

   On remand, the trial court may either attach additional portions of the
record, if any, refuting appellant’s allegations or hold an evidentiary
hearing on this claim.

   Affirmed in part, Reversed in part, and Remanded with directions.

GROSS, TAYLOR and MAY, JJ., concur.



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Not final until disposition of timely filed motion for rehearing.




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