Frederick ADDISON, Appellant, v. STATE of Florida, Appellee, 231 So. 3d 1291

PER CURIAM. Frederick Addison appeals the

summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the record does not conclusively refute Addison’s claim that counsel was ineffective for failing to depose or call the victim to testify for mitigation purposes at his sentencing on the violation of probation, we reverse the order summarily denying his motion and remand for attachment of portions of the record conclusively refuting the claim or for an evidentiary hearing. See Freeman v.

State, 761 So.2d 1055, 1061 (Fla. 2000) (“[A] defendant is entitled to an evi-dentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.” (citing Maharaj v. State, 684 So.2d 726 (Fla. 1996))). REVERSED and REMANDED. ORFINGER, BERGER and WALLIS, JJ., concur.