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


JASON WILLIAMS,

             Appellant,

 v.                                                    Case No. 5D17-231

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed July 14, 2017

3.850 Appeal from the Circuit Court
for Brevard County,
David Dugan, Judge.

Jason Williams, Lowell, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Kaylee D. Tatman,
Assistant Attorney General, Daytona
Beach, for Appellee.


PER CURIAM.

      For the second time, Jason Williams appeals the summary denial of his motion for

postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.      In

Williams v. State, 

(Fla. 5th DCA 2016), we affirmed the summary denial

of Williams’s first, third and fourth claims for relief. However, we reversed the summary

denial of his second claim, which asserted that his counsel was ineffective for agreeing
to, or failing to object to, portions of the self-defense jury instruction that improperly shifted

the burden of proof from the State to him.1 We then remanded for the trial court to attach

portions of the record conclusively refuting that claim or to hold an evidentiary hearing.

. On remand, the postconviction court again summarily denied

Williams’s second claim.2 This was error.

       “A challenge to a jury instruction is properly raised on appeal, but when defense

counsel has failed to preserve the right to appeal the issue, a defendant may challenge

his counsel’s performance through a motion for postconviction relief . . . .” Ottesen v.

State, 

, 30 (Fla. 2d DCA 2003). An instruction that shifts the burden of proof

in support of a defense to the defendant is inappropriate and cannot be viewed as

reasonable trial strategy. Adams v. State, 

, 999-1000 (Fla. 2d DCA 1999).

Accordingly, Williams is entitled to an evidentiary hearing on his second claim for relief.

See Hughes v. State, 

, 135 (Fla. 2d DCA 2009). We reverse the trial court’s




       1As we explained in Brown v. State, 

, 598 (Fla. 5th DCA 1984),
superseded by statute on other grounds as stated in Thomas v. State, 

,
330 (Fla. 1st DCA 2005),

               [w]hile the defendant may have the burden of going forward
               with evidence of self-defense, the burden of proving guilt
               beyond a reasonable doubt never shifts from the State, and
               this standard broadly includes the requirement that the State
               prove that the defendant did not act in self-defense beyond a
               reasonable doubt.
       2 The postconviction court attached the original order denying the rule 3.850
motion, our mandate from the direct appeal, and the entire trial transcript to the summary
denial order. Rule 3.850 requires that the court attach only “a copy of that portion of the
files and records that conclusively shows that the defendant is entitled to no relief.” Fla.
R. Crim. P. 3.850(f)(4) (emphasis added). The court’s approach frustrates appellate
review and can alone be grounds for reversal to attach specific records to the summary
denial order. See Pullum v. State, 

, 628-29 (Fla. 2d DCA 2005).


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order summarily denying Williams’s second claim for relief and remand for an evidentiary

hearing.

      REVERSED and REMANDED.


SAWAYA, ORFINGER and LAMBERT, JJ., concur.




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