Opinion
No. 5D00-700.
Decision filed December 29, 2000.
Appeal from the Circuit Court for Seminole County, Alan A. Dickey, Judge.
Affirmed in part, Vacated in part, and cause Remanded with instructions.
Kenneth Moye, Avon Park, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
Kenneth Moye appeals the trial court's order denying his motion seeking postconviction relief. See Fla.R.Crim.P. 3.850. The motion raised six claims of error, two of which were afforded an evidentiary hearing. We affirm the trial court's denial of grounds two through six but vacate and remand this matter to the trial court for further proceedings regarding ground one.
Moye alleged in ground one of his motion that his defense counsel was ineffective for denying him his right to testify. To support this claim, Moye alleged that he had adamantly instructed counsel that he wanted to testify on his own behalf. Although the trial court denied this claim by making reference to an attachment, no document was attached to the court's order nor did the trial court's order identify the portion of the record which contained the referenced attachment. Thus, this court is unable to determine whether Moye's claim of ineffective assistance of counsel is refuted by the attachment. Accordingly, we vacate the trial court's order and remand the matter to the trial court with instructions to either attach the missing document or to hold an evidentiary hearing if there is insufficient evidence in the record to refute the claim. See Gary v. State, 25 Fla. L. Weekly D2037 (Fla. 2d DCA Aug. 25, 2000);Hatten v. State, 698 So.2d 899 (Fla. 5th DCA 1997); Edwards v. State, 652 So.2d 1276 (Fla. 5th DCA 1995).
Sharp, W., and Peterson, JJ., Concur.