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


ALLEN LEE DAVIS,

              Appellant,

 v.                                                       Case No. 5D17-3239

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed February 16, 2018

3.850 Appeal from the Circuit
Court for Orange County,
Marc L. Lubet, Judge.

Allen L. Davis, Lowell, pro se.

No Appearance for Appellee.


PER CURIAM.

       Allen Davis appeals the summary denial of his amended motion for postconviction

relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his first claim, Davis

alleged that his trial counsel was ineffective in failing to file a motion to suppress certain

incriminating statements that Davis had made to a detective. In summarily denying the

claim, the trial court relied on the detective’s trial testimony to determine that a motion to

suppress would have been fruitless. However, the record does not conclusively refute

Davis’ claim that his statements were made during a custodial interrogation, during which
he was not advised of his Miranda1 rights. Accordingly, on remand, the trial court must

either attach records conclusively refuting this claim or hold an evidentiary hearing. We

affirm, without discussion, the summary denial of the remainder of Davis’ claims.

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


PALMER, EVANDER and LAMBERT, JJ., concur.




      1   Miranda v. Arizona, 

(1966).


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