BILUS v. STATE (2022)

Robert B. Bilus appeals an order denying his postconviction motion filed under Florida Rule of Criminal Procedure 3.850. Bilus raised ten grounds challenging his 2014 convictions for interference with custody, lewd or lascivious battery on a person under the age of sixteen, and traveling to meet a minor. The trial court summarily denied all ten grounds. Bilus asserts that the trial court reversibly erred in denying six of those grounds. We affirm on all but one ground.

As to the first ground, the records in the case do not conclusively refute the claim. Bilus argued that his counsel was ineffective for not properly advising him on the State's pretrial offer and that Bilus could enter a guilty plea while preserving the right to appeal the trial court's ruling on his motion to suppress. The trial court relied on records from a related federal habeas proceeding to find that Bilus’ postconviction claim was conclusively refuted.

But even though the records in the federal case refuted Bilus’ claim, the trial court could not rely on those records to summarily deny the postconviction claim because those records were not part of the “records in the case.” See Fla. R. Crim. P. 3.850(f)(5) (“If the motion is legally sufficient but all grounds in the motion can be conclusively resolved either as a matter of law or by reliance upon the records in the case, the motion shall be denied without a hearing by the entry of a final order.”) (emphasis supplied); see also Dukes v. State, 313 So. 3d 149 (Fla. 1st DCA 2020) (holding that the trial court could not summarily deny postconviction claim by relying on “records and transcript excerpts from separate criminal proceedings” when those documents were never made part of the record in appellant's case). For this reason, we reverse and remand for the trial court to attach records that conclusively refute the claim in ground one or to hold an evidentiary hearing on that claim. See Ortiz v. State, 968 So. 2d 681, 684 (Fla. 1st DCA 2007).

Affirmed in part, Reversed in part and Remanded.

Per Curiam.

Rowe, C.J., and Roberts and Ray, JJ., concur.