Third District Court of Appeal
State of Florida
Opinion filed July 25, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-2380
Lower Tribunal No. 14-483-A-K
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Leroy Martin Jr.,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Monroe County, Mark H. Jones, Judge.
Leroy Martin Jr., in proper person.
Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant
Attorney General, for appellee.
Before ROTHENBERG, C.J., and SUAREZ and LINDSEY, JJ.
PER CURIAM.
Leroy Martin appeals the summary denial of his motion for post-conviction
relief filed pursuant to Florida Rule of Criminal Procedure 3.850. On July 10,
2014, the State charged Martin by Amended Information with one count of Sale of
Cocaine within 1,000 feet of a Public Park or a Publicly Owned Recreational
Facility and one count of Unlawful Use of a Two-Way Communication Device.
Martin proceeded to trial and was found guilty as charged. This Court
subsequently affirmed Martin’s convictions and sentences. Martin v. State, 208
So. 3d 714 (Fla. 3d DCA 2016).
On April 5, 2017, Martin filed a Rule 3.850 motion for post-conviction relief
in the trial court asserting five separate claims of ineffective assistance of trial
counsel. On June 29, 2017, the State filed a response to Martin’s post-conviction
motion but did not attach any exhibits refuting Martin’s claims. The trial court
issued an order denying Martin’s post-conviction motion on October 15, 2017 and
attached a map depicting the location of the offense as well as an excerpt from the
trial transcript concerning law enforcement testimony on the location of the crime.
Martin filed a timely Notice of Appeal and this Court ordered the State to
respond. The State conceded in its response that the trial court erred by summarily
denying Martin’s Rule 3.850 motion because the two exhibits attached to the
denial order do not conclusively refute Martin’s ineffective assistance of counsel
claims. As such, the State requests that this Court reverse and remand with
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instructions for the trial court to either attach portions of the record that
conclusively refute Martin’s claims or hold an evidentiary hearing.
Based on the record before us, we reverse and remand for the trial court to
either grant an evidentiary hearing or attach portions of the record that
conclusively refute Martin’s claims for ineffective assistance of trial counsel. See
Debose v. State, 237 So. 3d 1059, 1060 (Fla. 3d DCA 2017) (reversing portion of
the trial court’s order denying defendant’s ineffective assistance of trial counsel
claim and remanding for the trial court to “either grant an evidentiary hearing or to
attach the necessary portions of the record that conclusively show that [defendant]
is not entitled to relief.”).
Reversed and remanded.
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