MAGEE v. STATE (2018)

District Court of Appeal of Florida, Fifth District.

Paul Frederick MAGEE, Appellant, v. STATE of Florida, Appellee.

Case No. 5D18-839

Decided: August 31, 2018

James S. Purdy, Public Defender, and Sean Kevin Gravel, Assistant Public Defender, Daytona Beach, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.

Paul Frederick Magee appeals the final order entered by the post-conviction court summarily denying his motion seeking post-conviction relief, filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. The motion raised four grounds for relief, and all were denied by the post-conviction court. On appeal, Magee challenges the summary denial of the first and third grounds, arguing they were facially sufficient and warranted an evidentiary hearing. We affirm as to the court's denial of the first ground; however, we reverse as to the denial of the third ground. On remand, the post-conviction court must either conduct an evidentiary hearing or attach portions of the record which conclusively refute Magee's ineffective assistance of counsel claim raised in ground three. See Nelson v. State, 73 So.3d 77, 84 (Fla. 2011).

AFFIRMED in part; REVERSED in part; REMANDED.

PER CURIAM.

PALMER, LAMBERT and EDWARDS, JJ., concur.

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