IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
KEVIN LEE ELLIOTT, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-5527
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed September 5, 2017.
An appeal from the Circuit Court for Duval County.
Russell L. Healey, Judge.
Kevin Elliot, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General,
Tallahassee, for Appellee.
PER CURIAM.
Kevin Lee Elliott challenges the trial court’s order denying his motion for
postconviction relief, which failed to attach records that conclusively demonstrate
no entitlement to relief. In addition, he challenges the trial court’s failure to conduct
an evidentiary hearing or allow amendment of his pleadings. We reverse to require
that the trial court either attach portions of the record that conclusively refute
Elliott’s claims in counts one, four, seven, and eight of his complaint, or absent such
records, hold an evidentiary hearing. See Washington v. State, 10 So. 3d 1126, 1127
(Fla. 1st DCA 2009) (Absent attachment of portions of the record that conclusively
refute claims, a “summary denial is improper, and an evidentiary hearing is
required.”). As to other counts, Elliott should be given the opportunity to amend his
claim. See Spera v. State, 971 So. 2d 754, 762 (Fla. 2007) (“[W]hen a defendant’s
initial rule 3.850 motion for postconviction relief is determined to be legally
insufficient for failure to meet either the rule’s or other pleading requirements, the
trial court abuses its discretion when it fails to allow the defendant at least one
opportunity to amend the motion.”).
REVERSED AND REMANDED.
WOLF, MAKAR, and M.K. THOMAS, JJ., CONCUR.
2