Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MICHAEL JOHN PHILLIPS, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-1963 June 10, 2022 Appeal from the Circuit Court for Hardee County; Michael E. Raiden, Judge. Michael Phillips, pro se. Ashley Moody, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa for Appellee. BLACK, Judge. In 2012, Michael Phillips was convicted of two counts of DUI manslaughter, one count of DUI with personal injury, and four counts of DUI with property damage. Following an unsuccessful appeal from his judgment and sentences, Phillips filed a timely motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Phillips now appeals from the order granting in part and denying in part his postconviction motion, challenging only the two claims that were summarily denied.1 We reverse the order insofar as the postconviction court failed to attach record documents supporting its summary denial of those claims. Phillips first contends that the postconviction court erred in summarily denying his claim that trial counsel was ineffective for failing to move to exclude testimony and evidence regarding Phillips' alleged use of K2, a synthetic cannabinoid. In denying this claim, the postconviction court cited evidence that Phillips had methamphetamine in his system at the time of the collision and the testimony from Phillips' own trial expert that methamphetamine can sometimes make a person "a better driver." The court also relied upon the trial testimony from both sides' experts about the effects of K2, stating that both experts were "guarded" in their 1 Phillips' challenge to the resentencing that occurred as the result of the postconviction court's granting of relief is the subject of appeal number 2D22-758. 2 testimony regarding K2 because K2 can be comprised of several different chemicals and data on the chemicals is limited. The postconviction court did not attach record documents supporting its determination, however. Instead, the court included a footnote stating that it had not attached trial transcript excerpts "because the facts it has relied upon to deny [this ground] are from [Phillips'] own motion. It is a safe assumption [Phillips] would have presented those facts in the light most favorable to himself." While the court's assumption may be true, it does not relieve the court of its obligation to attach records that conclusively refute Phillips' claim. See Fla. R. Crim. P. 3.850(f)(4) ("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." (emphasis added)). In his second argument on appeal, Phillips contends that the postconviction court erred in summarily denying the claim that counsel was ineffective for failing to object to the State's closing argument which suggested that Phillips' statement regarding his use of K2 "the day before" the collision was a mistake based on Phillips having been sedated and not knowing what day it was. 3 Phillips argued in his postconviction motion that counsel should have objected to the State's argument because it amounted to comments on matters not in evidence. The postconviction court agreed with the State's analysis as presented in its response to Phillips' motion; however, the court did not attach records or incorporate the State's response. "[T]he rules of criminal and appellate procedure do not preclude a court from incorporating a response from the State if the State has provided the necessary record documents." Barnes v. State, 38 So. 3d 218, 219-20 (Fla. 2d DCA 2010) (citing Langdon v. State, 947 So. 2d 460, 461 n.2 (Fla. 3d DCA 2006)). However, "the better practice is for the court to either attach those specific parts of the record that refute each claim or to discuss its rationale in its order." Id. at 220. Here, although the State's response appended two pages of trial transcript, the two pages consisted of only the closing argument and did not include the testimony or evidence being discussed in the statements. Moreover, the postconviction court did not append any records refuting the claim or discuss its rationale for denying the claim. See Burnett v. State, 933 So. 2d 1282, 1282 (Fla. 2d DCA 2006) ("[T]he postconviction court merely adopted and incorporated 4 by reference the State's response and failed to append any record attachments to its order. Thus the order does not support the summary denial of Burnett's motion."); Dieudonne v. State, 993 So. 2d 640, 642 (Fla. 4th DCA 2008) ("[T]hose portions of the transcript upon which the State relied [and the postconviction court incorporated] were not attached to the State's response or otherwise included in the record on appeal."). The order is also insufficient for this court to direct that supplemental records be filed pursuant to Harvester v. State, 817 So. 2d 1048 (Fla. 2d DCA 2002). See Phillips v. State, 229 So. 3d 426, 428 (Fla. 2d DCA 2017) (stating that Harvester applies when the postconviction court's order references documents but fails to attach those documents). We reverse the postconviction court's order to the extent that it denied the two claims discussed; on remand, the court must either attach those portions of the record that conclusively refute Phillips' claims or conduct an evidentiary hearing. Affirmed in part; reversed in part; remanded. MORRIS, C.J., and LaROSE, J., Concur. Opinion subject to revision prior to official publication. 5