District Court of Appeal of Florida, Fourth District.
Jeffrey R. Hastings, Indiantown, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Sarah B. Mayer, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
This is an appeal from an order denying a pro se motion for post-conviction relief.
While the state makes a valid argument that the facts of this case as shown by trial testimony demonstrate that appellant's actions which resulted in six separate drownings may well be considered separate for purposes of consecutive sentencing, the transcript testimony relied upon and included in the appendix to the state's response filed in this court were not attached to the trial court's order of denial.
A trial court may deny relief without an evidentiary hearing provided it attaches to *1177 its order portions of the record that conclusively refute the allegations. The state's supplementation of the order with portions of the record is insufficient to support the trial court's summary denial. See McGrady v. State, 591 So. 2d 270 (Fla. 4th DCA 1991.) See also Cherry v. State, 638 So. 2d 111 (Fla. 4th DCA 1994); Wheeler v. State, 634 So. 2d 213 (Fla. 4th DCA 1994). Accordingly, the order is reversed and remanded for either attachment of portions of the record refuting the claim or for an evidentiary hearing.
GLICKSTEIN, DELL and POLEN, JJ., concur.
