JOSHUA GLOSTON vs STATE OF FLORIDA

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

JOSHUA GLOSTON,

Appellant,

v. Case No. 5D23-391 LT Case No. 16-2015-CF-00618-A

STATE OF FLORIDA,

Appellee. ________________________________/ Opinion filed March 31, 2023

3.850 Appeal from the Circuit Court for Duval County, Kevin A. Blazs, Judge.

Joshua Gloston, Bonifay, pro se.

Ashley Moody, Attorney General, Tallahassee, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.

EDWARDS, J.

Appellant, Joshua Gloston, appeals the order summarily denying his Florida Rule of Criminal Procedure 3.850 motion. We affirm the order as to all claims, except Appellant’s Claim 6. That claim asserts that defense counsel failed to investigate the existence of a potential alibi witness who Appellant claimed he disclosed to counsel. Appellant claims that this witness would have placed him with that witness on a bus, rather than at the hotel where and at the time the crime was committed. The documents attached to the order of summary denial certainly are relevant to Claim 6 and suggest that the testimony of the alibi witness may not refute Appellant’s presence at the crime scene, given that Appellant’s DNA was found there. However, the attached documents do not conclusively refute Claim 6. See Smith v. State, 150 So. 3d 1207 (Fla. 5th DCA 2014).

Accordingly, we reverse and remand as to Claim 6 for the court to either attach documents conclusively refuting Claim 6 or to conduct an evidentiary hearing with regard to that claim. We affirm the balance of the order in its entirety.

REVERSED AND REMANDED, with instructions. HARRIS and MACIVER, JJ., concur.