          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D17-3147
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KYLE RAY HIMES,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Nassau County.
Robert M. Foster, Judge.

                         October 15, 2018


PER CURIAM.

    Appellant, Kyle Ray Himes, appeals from an order
summarily denying his motion for postconviction relief filed
pursuant to Florida Rule of Criminal Procedure 3.850. In his
motion, Appellant asserted several grounds for relief based on
newly discovered evidence. The lower court denied all such claims
as successive in its order rendered on July 17, 2017. However,
because the lower court did not include attachments of record
evidence which conclusively refuted Appellant’s claims, we
reverse.

    “To uphold the trial court's summary denial of claims raised
in a 3.850 motion, the claims must be either facially invalid or
conclusively refuted by the record.” Peede v. State, 748 So. 2d 253,
257 (Fla. 1999). “On appeal from the denial of relief, unless the
record shows conclusively 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).

    Here, Appellant’s claims appear to be facially valid, and they
are not conclusively refuted by the record. In fact, the State
concedes error. We therefore reverse the lower court’s summary
denial of Appellant’s claims of newly discovered evidence and
remand for further proceedings.

    REVERSED and REMANDED.

MAKAR, OSTERHAUS, and JAY, JJ., concur.

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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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Andy Thomas, Public Defender, and Glen P. Gifford, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Bryan Jordan, Senior
Assistant Attorney General, Tallahassee, for Appellee.




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