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

VINCENT TERRY,

Appellant,

v. Case No. 5D22-1463

LT Case No. 2018-CF-306

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed August 11, 2023

3.850 Appeal from the Circuit Court 

for Marion County,

Lisa D. Herndon, Judge.

Vincent Terry, Milton, Pro Se

Ashley Moody, Attorney General, 

Tallahassee, and Allison L. Morris, 

Assistant Attorney General, Daytona 

Beach, for Appellee.

BOATWRIGHT, J.

Vincent Terry appeals the trial court’s order denying his nine-ground 

Florida Rule of Criminal Procedure 3.850 motion for postconviction relief 
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following an evidentiary hearing, as well as the court’s order denying his 

motion for appointment of counsel to represent him at the evidentiary hearing. 

We reverse the portions of the order denying Ground Two, in which Terry

asserted his trial counsel was ineffective for failing to object to the imposition 

of an alleged vindictive sentence, and Ground Eight, wherein Terry asserted 

his trial counsel was ineffective for failing to advise him of the maximum 

sentence he faced before he rejected the State’s plea offer. We otherwise 

affirm without elaboration the denial of the remaining grounds of Terry’s 

motion, and we additionally affirm the order denying Terry’s motion for 

appointment of counsel, as the record supports their affirmance.

Although the trial court set all nine grounds of Terry’s motion for an 

evidentiary hearing, the State and the court apparently believed Grounds Two 

and Eight were conclusively refuted by the record, so the testimony elicited 

at the evidentiary hearing did not adequately address those grounds. As to 

Ground Two, the court found, without elaboration, that the record conclusively 

refuted Terry’s claim that his sentence was vindictive, but it did not attach the 

portions of the record it found to have refuted his claim. As to Ground Eight, 

the court indicated that Terry’s trial counsel had testified about his advice to

Terry in connection with the State’s plea offer, but none of the testimony cited 

in the trial court’s order addressed Terry’s claim that he was not advised of 
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the maximum sentence he faced when he rejected the plea offer. The court’s 

denial of Terry’s Ground Eight claim relied exclusively on a citation to an 

excerpt from a status hearing, but the transcript of that status hearing 

referenced in the order is neither attached to the order nor is it in our record.

There is also no other record evidence or testimony from the evidentiary 

hearing which would support an affirmance on this ground.

According to Florida Rule of Criminal Procedure 3.850(f)(4), if the 

“records in the case conclusively show that the defendant is not entitled to 

relief as to 1 or more claims, the claims that are conclusively refuted shall be 

summarily denied,” and “[a] copy of that portion of the files and records in the 

case that conclusively shows that the defendant is not entitled to relief . . . 

shall be attached to the order summarily denying these claims.” See also

Maxwell v. State, 169 So. 3d 1264, 1265 (Fla. 5th DCA 2015) (“To uphold the 

[postconviction] court’s summary denial of claims raised in a 3.850 motion, 

the claims must be either facially invalid or conclusively refuted by the record.” 

(quoting Foster v. State, 810 So. 2d 910, 914 (Fla. 2002))). As a result, when 

a trial court summarily denies a rule 3.850 claim and fails to attach a copy of 

portion of the files and records in the case that conclusively shows that the 

defendant is not entitled to relief, then the proper remedy is to remand the 

matter back to the trial court to attach the records that conclusively refute the 
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defendant’s claims or to set the matter for an evidentiary hearing. Id.;Thomas 

v. State, 306 So. 3d 1260, 1262 (Fla. 5th DCA 2020).

Here, although the court indicated it set a hearing on all nine of Terry’s 

postconviction claims, Grounds Two and Eight were not adequately resolved 

at that evidentiary hearing. Consequently, the final order effectively 

constituted a summary denial of those grounds, but it lacked the 

accompanying record attachments required by rule 3.850. Cf. Gonzalez v. 

State, 59 So. 3d 288, 290 (Fla. 3d DCA 2011) (remanding for a second 

evidentiary hearing where it had already been determined that the trial court’s 

record attachments did not conclusively refute the defendant’s postconviction 

claim, and the first evidentiary hearing did not adequately resolve that claim).

We therefore reverse and remand for the trial court to attach the 

portions of the record supporting its findings that Grounds Two and Eight of 

Terry’s motion were conclusively refuted by the record or to hold an 

evidentiary hearing on those grounds. 

AFFIRMED, in part; REVERSED, in part; and REMANDED.

MAKAR and PRATT, JJ., concur.