DAVIS v. STATE (2002)

District Court of Appeal of Florida,First District.

Walker DAVIS, Jr., Appellant, v. STATE of Florida, Appellee.

No. 1D00-2140.

Decided: April 08, 2002

Nancy A. Daniels, Public Defender and Andrew Thomas, Assistant Public Defender, Tallahassee, for Appellant. Robert A. Butterworth, Attorney General and Thomas H. Duffy, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

This is an appeal from a final order denying a motion for postconviction relief under rule 3.850. The trial judge denied the defendant's claim of ineffective assistance of counsel following an evidentiary hearing, and summarily denied a number of other claims. We affirm in all respects, but one. The trial judge evidently overlooked claim 2(c) in the amended motion for postconviction relief. On this point the defendant made a facially sufficient allegation that a critical state witness, Mark Gilliam, recanted his testimony after the trial. Because we are unable to affirm the disposition of this claim on this record, the trial judge must either conduct an evidentiary hearing on the claim or attach records that conclusively refute the claim.

Affirmed in part and reversed in part.

PER CURIAM.

BOOTH, BARFIELD and PADOVANO, JJ., concur.

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