FRANCIS J. PILKINGTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Francis Pilkington appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We find merit in only one of Pilkington’s claims and reverse on that point. The trial court’s order is affirmed in all other respects.
Pilkington alleges that his trial counsel was ineffective for failing to object to the reasons given to support his upward departure sentence. Such a claim is cognizable in a rule 3.850 motion. See, e.g., Lang v. State, 571 So. 2d 487 (Fla. 2d DCA 1990) (holding that failure to object to a scoresheet error and thereby preventing review on direct appeal is cognizable as ineffective assistance of counsel). If Pilkington’s allegations are true, neither reason given for departure is legally sufficient. Therefore, Pilkington’s claim is facially sufficient. On remand the trial court may again summarily deny Pilkingr ton’s claim if it can be refuted by record attachments. If it cannot, the court shall hold an evidentiary hearing.
Affirmed in part; reversed in part; and remanded.
THREADGILL, A.C.J., and FULMER and GREEN, JJ., Concur.
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Johnson v. State, 120 So. 3d 629 (Fla. 2d DCA 2013)…assistance for failing to object to improper reasons given in support of an upward departure sentence are cognizable in motions for post-conviction relief. See, e.g., Rodriguez v. State, 932 So. 2d 1287, 1289 (Fla. 2d DCA 2006); Pilkington v. State, 734 So. 2d 1153, 1153 (Fla. 2d DCA 1999), review denied, 744 So. 2d 456 (Fla.1999). Although the present case does not involve an upward departure sentence, it does involve improper considerations by the trial judge in determining an appropriate sentence. We conclu…
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Darrel Turnage v. State, 776 So. 2d 992 (Fla. 4th DCA 2001)…ns of ineffective assistance of counsel for trial counsel’s failure to object to the reasons given to support an upward departure sentence is cognizable in a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. See Pilkington v. State, 734 So. 2d 1153 (Fla. 2d DCA), review denied, 744 So. 2d 456 (Fla.1999). On remand, the trial court shall either attach those portions of the record that conclusively refute this claim or, shall conduct an evidentiary hearing on them to determine whether counsel…
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Lashley v. State, 741 So. 2d 1149 (Fla. 2d DCA 1999)…Lashley’s attorney failed to review the materials central to his sentencing, and thus overlooked a crucial defect in his sentence, constitutes a facially sufficient claim that counsel was ineffective. See Pilkington v. State, 24 Fla. L. Weekly 1321, 734 So. 2d 1153 (Fla. 2d DCA 1999.) Accordingly, we remand the case to the trial court to hold an evidentiary hearing on this claim of ineffective assistance of counsel or to submit further record attachments which conclusively refute this claim. Affirmed in part…
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- Lang v. State, 571 So. 2d 487 (Fla. 2d DCA 1990)