DUNNELL v. STATE (2020)

Appellant appeals the summary denial of his Motion for Postconviction Relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the denial of grounds two and three but affirm the denial of grounds one and four without further discussion.

In grounds two and three of the motion, Appellant alleged that his trial counsel was ineffective for failing to investigate an entrapment defense and for failing to file a motion to dismiss based on entrapment. In summarily denying these grounds, the trial court relied on the prosecutor's statements regarding the contents of two video recordings of the controlled drug transactions. Although the record suggests that video recordings of the controlled buys were played at the sentencing hearing, transcripts of the recordings are not included in the record on appeal. Moreover, the prosecutor's summary of the controlled buys is not record evidence. See generally Raysor v. State, 276 So. 3d 121, 124 (Fla. 2d DCA 2019) (recognizing the standard jury instruction that states that comments made by attorneys are not evidence). Therefore, the record does not conclusively refute Appellant's claims of entrapment. Accordingly, we reverse the summary denial of grounds two and three and remand for the trial court to attach record evidence that conclusively refutes those claims, or to hold an evidentiary hearing. See Mitchell v. State, 238 So. 3d 411, 412 (Fla. 5th DCA 2018).

AFFIRMED in Part; REVERSED in Part; REMANDED with Instructions.

PER CURIAM.

EVANDER, C.J., WALLIS and GROSSHANS, JJ., concur.