BYNOE v. STATE (2021)

District Court of Appeal of Florida, Fifth District.

Michael BYNOE, Appellant, v. STATE of Florida, Appellee.

Case No. 5D21-1400

Decided: December 17, 2021

LAMBERT, C.J., COHEN and SASSO, JJ., concur.

Michael Bynoe, East Palatka, pro se. Ashley Moody, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.

Michael Bynoe appeals the postconviction court's order summarily denying his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We affirm the order under review, except as to Bynoe's claim that his trial counsel was ineffective for failing to call the minor victim's pediatrician, Dr. Tiu, to testify at trial.¹

We conclude that the record attachments to the denial order do not conclusively refute this claim. See Peede v. State, 748 So. 2d 253, 257 (Fla. 1999) (providing that to uphold a circuit court's summary denial of a rule 3.850 claim, the claim “must be either facially invalid or conclusively refuted by the record”). The postconviction court is directed either to attach additional records to its denial order that conclusively refute the claim or to hold an evidentiary hearing.

AFFIRMED, in part; REVERSED, in part; REMANDED, with directions.

FOOTNOTES

1. Bynoe was convicted of neglect of a child causing great bodily harm. The victim is Bynoe's then-infant daughter.

PER CURIAM.

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