DARREL TURNAGE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2001-01-17
No. 4D00-2737
DELL, FARMER and SHAHOOD, JJ., concur.
776 So. 2d 992 Florida District Court of Appeal, Fourth District (2001) Positive Treatment
Cited by 4 cases

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Holding

The court held that a claim of ineffective assistance of counsel for failing to object to an illegal upward departure sentence is cognizable under rule 3.850.


Facts & Procedural History

Darrel Turnage filed a motion for postconviction relief, alleging ineffective assistance of counsel for failing to object to an illegal upward departu…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Darrel Turnage challenges the trial court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Turnage raises four grounds for relief, only one of which has merit. We reverse and remand for further proceedings on his fourth claim that his counsel was ineffective for failing to object to a sentence he contends is illegal due to an improper upward departure. We affirm Turnage’s remaining claims without discussion.

In its response below, the state contends that Turnage’s claim was properly denied because it should have been raised on appeal. The state provided no record attachments with its response. The trial court, adopting the state’s response, summarily denied Turnage’s motion. We disagree with the trial court’s order as to Turnage’s fourth claim.

Allegations 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 was ineffective.

REVERSED and REMANDED.

DELL, FARMER and SHAHOOD, JJ., concur.


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Citator

Cited By

  • Jones v. State, 781 So. 2d 480 (Fla. 3d DCA 2001)
    …ks a belated appeal on the ground that he did not receive notice of the sentence within the time permitted to file a timely one. Given the state’s concession that it was error for the sentencing to proceed without the defendant, see Levine v. State, 776 So. 2d 992 (Fla. 4th DCA 2001); Smith v. State, 754 So. 2d 114 (Fla. 3d DCA 2000), we deem it appropriate hereby both to grant the petition for belated appeal and to determine the case on the merits by vacating the sentence under review. Levine; Smith; see Miz…
  • Bryant v. State, 796 So. 2d 1229 (Fla. 4th DCA 2001)
    …PER CURIAM. In this belated appeal, appellant was not present at the time of resentencing. As the state concedes this was error, we reverse for resentencing with the defendant present. See Levine v. State, 776 So. 2d 992 (Fla. 4th DCA 2001). REVERSED AND REMANDED. POLEN, C.J., DELL and TAYLOR, JJ., concur.…

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