### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA F OURTH D ISTRICT

KARL W. JOHNSON , Appellant,

v.

STATE OF FLORIDA, Appellee

.

No. 4D 21

- 3042

[ November 16, 2022 ]

CORRECTED OPINION

Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County ; Kirk C. Volker , Judge; L.T. Case No . 502016CF005091A

.

Karl W. Johnson
, Raiford , pro se

. Ashley Moody, Attorney General, Tallahassee, and Deborah Koenig, Assistant Attorney General, West Palm Beach, for appellee

.

P ER C URIAM

. Karl Johnson appeals an order summarily denying his multi

- claim motion filed under Florida Rule of Criminal Procedure 3.850. We reverse and remand for further review of A ppellant’s claim that defense counsel failed to present evidence to support A ppellant ’s entrapment defense. We affirm in all other respects.

Appellant was convicted following a jury trial of trafficking in heroin. Subjective entrapment was his trial defense. See § 777.201 (2) , Fla

. Stat

. (2016) (“ A person prosecuted for a crime shall be acquitted if the person proves by a preponderance of the evidence that his or her criminal conduct occurred as a result of an entrapment.”)

. “Subjective entrapment ... ‘is applied in the absence of egregious law enforcement conduct and focuses on inducemen t of the accused based on an apparent lack of predisposition to commit the offense.’” State v. Laing , 182 So. 3d 812, 815 (Fla. 4th DCA 2016) (quoting State v. Henderson
, 955 So. 2d 1193, 1194 (Fla. 4th DCA 2007) )

.2 A detective was the S tate’s primary witness. The detective was working undercover when he contacted A ppellant to set up a drug buy which led
to A ppellant’s arrest and conviction.

Within his Rule 3.850 motion
, A ppellant contend s defense counsel failed to present available video evidence to support the entrapment defense and corroborate A ppellant’s trial testimony. Appellant alleges the video shows promises made to him by the detective that induced A ppellant to engage in the dru g deal , and the video would also impeach the detective’s testimonial claim that he didn’t know “Alicia,” an individual who m Appellant c laim s was an integral person in the alleged entrapment

.

To refute the claim
, the S tate and trial court relied on a Nels on 1 hearing which the trial court held during sentencing regarding the video. However, that hearing solely addressed A ppellant’s complaint that trial counsel failed to use the video to adequately impeach the detective

.

In evaluating Appellant’s R ule 3.850 motion, t he trial court did not view the video at issue. Because the prior Nelson hearing did not sufficiently cover the factual allegations made in the postconviction motion regarding substantive use of the evidence, we reverse and remand for further review of the claim. See Brown v. State , 770 So. 2d 1285 , 1285 (Fla. 3d DCA 2000) (“Because testimony at the Nelson hearing did not fully address the factual issues raised in the defendant ’ s 3.850 motion and sworn affidavit,

we reverse and remand for an evidentiary hearing.”)

. On remand, t he trial court may attach additional portions of the record that conclusively refute A ppellant ’ s claim or, alternatively, conduct an evidentiary hearing.

Affirmed in part, reversed in part and remanded.

W ARNER , C IKLIN and F ORST , JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

1 Nelson v. State , 274 So. 2d 256 (Fla. 4th DCA 1973).