PATRICK POOLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
In its order denying appellant’s motion for post-conviction relief after an evidentiary hearing, the trial court did not address appellant’s allegation that counsel rendered ineffective assistance in fading to object to an allegedly erroneous jury instruction. For the reasons explicated in the trial court’s otherwise comprehensive and exhaustive order, neither the numerous other claims in appellant’s motion, nor appellant’s additional arguments on appeal present a basis for relief. But the record now before us does not refute the allegation that the jury instruction omitted a necessary element of the offense of which appellant was convicted. As to the claim that trial counsel was ineffective for failure to object to the defective instruction, therefore, remand is necessary, as the state concedes, so this one claim can be addressed by the trial court in the first instance. See Yarbrough v. State, 599 So. 2d 245 (Fla. 1st DCA 1992).
Affirmed in part, reversed in part, and remanded.
ALLEN, BENTON, and BROWNING, JJ., CONCUR.
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Broderick Mongo v. State, 846 So. 2d 613 (Fla. 1st DCA 2003)…t addressed by the trial court. We, nevertheless, affirm because we ascertain from the appellate record that appellant’s petition fails to sufficiently allege the prejudicial effect of counsel’s ineffectiveness on appellant’s plea. Roulhac v. State, 746 So. 2d 1207 (Fla. 1st DCA 1999). Appellant entered a plea of nolo contendere to a charge of resisting an officer with violence and battery upon a law enforcement officer. The appellant was sentenced within the terms outlined by the plea agreement to five years…
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Gary v. State, 775 So. 2d 335 (Fla. 2d DCA 2000)…er counsel failed to object to the instruction, as Gary asserts, and, if so, whether this failure prejudiced Gary or whether it was a matter of trial strategy. We accordingly reverse the trial court’s order as to this claim only. See Poole v. State, 746 So. 2d 1207 (Fla. 1st DCA 1999)(reversing and remanding on claim that counsel was ineffective for failing to object to defective jury instruction where record failed to refute allegation that instruction omitted a necessary element of offense). On remand, the t…
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Poole v. State, 826 So. 2d 429 (Fla. 1st DCA 2002)…. Poole appealed and this court affirmed the denial of relief as to all issues except one, Poole’s allegation that his trial counsel rendered ineffective assistance when he failed to object to an allegedly erroneous jury instruction. Poole v. State, 746 So. 2d 1207 (Fla. 1st DCA 1999). This court found that the trial court had failed to specifically considered this issue and, because the record on appeal did not refute the claim, the cause was remanded. Id. On remand, the trial court again entered an order de…
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- Yarbrough v. State, 599 So. 2d 245 (Fla. 1st DCA 1992)