                                        IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA

JERRY GALLION,                          NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Appellant,                        DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D13-2905

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed December 9, 2014.

An appeal from the Circuit Court for Duval County.
Mallory D. Cooper, Judge.

Jerry Gallion, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Lauren Brudnicki, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      Appellant, Jerry Gallion, appeals an order denying his postconviction relief

motion which he filed pursuant to Florida Rule of Criminal Procedure 3.850. We

find no error in the trial court’s denial of relief as to Grounds 1, 3, and 6 following

an evidentiary hearing.     However, because the trial court summarily denied
Grounds 2, 4, 5, 7, 8, and 9 without attaching portions of the record conclusively

refuting the claims, a fact acknowledged by the State, we reverse and remand with

instructions that the court either attach such portions of the record or hold an

evidentiary hearing on the claims. See Wainwright v. State, 896 So. 2d 695, 698

(Fla. 2004) (noting that a defendant is entitled to an evidentiary hearing on a

postconviction relief claim unless the motion and record conclusively show that he

or she is entitled to no relief or where the claim is legally insufficient); Simmons v.

State, 66 So. 3d 327, 327-28 (Fla. 1st DCA 2011) (reversing for record attachments

or for an evidentiary hearing where the trial court failed to assemble a record from

which it could be conclusively determined that the appellant was not entitled to any

relief on his facially sufficient rule 3.850 claim); Washington v. State, 10 So. 3d

1126, 1127 (Fla. 1st DCA 2009) (“If the postconviction defendant’s claims are

legally sufficient, the trial court must attach portions of the record that conclusively

refute the claims.”).

      AFFIRMED in part; REVERSED in part; and REMANDED with

instructions.

LEWIS, C.J., VAN NORTWICK and SWANSON, JJ., CONCUR.




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