KRESGE v. STATE, 22 So.3d 694 (Fla.App. 1 Dist. 2009)

Thomas Scott KRESGE, Appellant, v. STATE of Florida, Appellee.

No. 1D09-2746.District Court of Appeal of Florida, First District.
November 10, 2009.

Appeal from the Circuit Court, Duval County, Linda F. McCallum, J.

Page 695

William J. Sheppard, D. Gray Thomas and Bryan E. DeMaggio, Sheppard, White, Thomas Kachergus, P.A., Jacksonville, for Appellant

Bill McCollum, Attorney General and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Thomas Kresge appeals the trial court’s summary denial of his postconviction motion alleging that counsel ineffectively failed to file a motion to suppress his confession. We reverse.

Following an officer’s warrantless entry into the appellant’s residence, the appellant confessed to unlawful sexual activity with a minor. At trial, defense counsel failed to file a motion to suppress the appellant’s confession as fruit of the poisonous tree. See State v. Rheiner, 297 So.2d 130, 134-35 (Fla. 2d DCA 1974). The appellant argues that the outcome of his case would have been different had counsel filed the motion. As the State concedes, the trial court did not attach record portions conclusively refuting the appellant’s claim.

Because the record now before us fails to contain the required showing, we reverse the trial court’s order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

REVERSED AND REMANDED for further proceedings.

BARFIELD and CLARK, JJ., and BROWNING, JR., EDWIN B., Senior Judge, concur.