MICHAEL JOSEPH NILIO
v.
STATE OF FLORIDA
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A postconviction court must make specific findings and attach supporting records when dismissing a Rule 3.850 motion as successive, particularly when the motion raises newly discovered evidence and alleges a facially sufficient reason for the prior failure to assert the claim.
[1] When dismissing a Rule 3.850 postconviction motion as successive, the trial court must make specific findings and attach a copy of the relevant portions of the files and…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“an order dismissing a postconviction motion as successive shall be accompanied by 'a copy of that portion of the files and records necessary to support the court's ruling'”
Citation to Fla. R. Crim. P. 3.850(h)(2) establishing the procedural requirement violated by the trial court.
Nilio filed a Rule 3.850 motion for postconviction relief claiming newly discovered evidence and explaining why he had not raised the claim in a prior…
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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D19-106 _____________________________
MICHAEL JOSEPH NILIO,
Appellant,
v.
STATE OF FLORIDA,
Appellee. _____________________________
On appeal from the Circuit Court for Nassau County. Robert M. Foster, Judge.
December 19, 2019
PER CURIAM.
Michael Joseph Nilio appeals an order summarily denying his Rule 3.850 motion for postconviction relief as successive. Because Nilio’s motion raised a claim of newly discovered evidence and alleged a facially sufficient reason for his failure to assert the instant claim in a prior motion, the postconviction court erred by denying his motion as successive without making specific findings or attaching any portion of the record to support its ruling. See Fla. R. Crim. P. 3.850(h)(2) (providing that an order dismissing a postconviction motion as successive shall be accompanied by “a copy of that portion of the files and records necessary to support the court's ruling”). As properly conceded by the State, we must reverse and remand for the postconviction court to make the
2
required findings and attach supporting records, if possible, or to consider Nilio’s motion on the merits.
REVERSED and REMANDED. RAY, C.J., and LEWIS and BILBREY, JJ., concur.
_____________________________
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________
Michael Joseph Nilio, pro se, Appellant.
Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.