IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

 FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

DYLAN HARRIS,

Appellant, 

v. Case No. 5D16-2888

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed December 2, 2016

3.850 Appeal from the Circuit 

Court for Citrus County,

Richard A. Howard, Judge.

Dylan Harris, Chipley, pro se.

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Marjorie Vincent-Tripp, 

Assistant Attorney General, Daytona 

Beach, for Appellee.

PALMER, J.

Dylan Harris (the defendant) appeals the post-conviction court's order summarily 

denying his motion for post-conviction relief. See Fla. R. App. P. 3.850. Because claim 

two of the defendant's motion is sufficiently pled and not refuted by the record, we reverse 

the summary denial of same. We affirm in all other respects. 
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The defendant filed a rule 3.850 motion alleging, in claim 2, that counsel was 

ineffective for failing to inform him of a five-year plea offer. The motion alleged that, during

the plea hearing, the defendant overheard a conversation between defense counsel and 

the prosecutor during which the prosecutor asked why the defendant never accepted the 

five-year plea offer. Additionally, the motion alleged that, had defense counsel presented 

the five-year offer to him, he would have accepted it, the State would not have withdrawn 

it, the post-conviction court would have accepted it, and the sentence under the offer's 

terms would have been less severe than the sentence actually imposed. See Alcorn v. 

State, 121 So. 3d 419 (Fla. 2013). The State filed a written response asserting that the 

prosecutor never made a five-year plea offer to defense counsel. Relying on the State's 

response, the post-conviction court summarily denied this claim.

The defendant argues that the post-conviction court erred in so ruling because the 

State's response failed to cite to any record support for the claim that no five-year offer 

had been made. We agree.

"The standard of review of a summary denial of a rule 3.850 

motion is de novo." Lebron v. State, 827 So. 3d 132, 133 (Fla. 

5th DCA 2012) (citing McLin v. State, 827 So. 2d 948, 954 

(Fla. 2002)). To uphold the summary denial, "the claims must 

be either facially invalid or conclusively refuted by the record." 

Peede v. State, 748 So. 2d 253,257 (Fla. 1999) (citing Fla. R. 

Crim. P. 3.850(d)); see also Freeman v. State, 761 So. 2d 

1055, 1061 (Fla. 2002).

Hird v. State, 41 Fla. L. Weekly D1638 (Fla. 5th DCA July 15, 2016).

 "Documents prepared to refute claims in a postconviction motion are not 

substitutes for an evidentiary hearing . . . . ” Flores v. State, 662 So. 2d 1350, 1351–52 

(Fla. 2d DCA 1995); see also Smalls v. State, 18 So. 3d 606 (Fla. 1st DCA 2009) (holding 
3

that court impermissibly relied on photographs attached to the State's response, that were 

not part of the record, in summarily denying the post-conviction motion).

Accordingly, we reverse the summary denial of claim 2 and remand for the 

post-conviction court to either conduct an evidentiary hearing or attach portions of the 

record that conclusively refute the claim. See Warren v. State, 149 So. 3d 738, 738 (Fla. 

5th DCA 2014) (reversing summary denial of post-conviction claim where attachments 

did not conclusively refute claim and remanding for attachments or evidentiary hearing).

AFFIRMED in part; REVERSED in part; REMANDED.

WALLIS and EDWARDS, JJ., concur.