DOUGLAS MCCRAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in summarily denying the motion for post-conviction relief on one ground, as the record did not conclusively refute the claim of ineffective assistance of counsel.
Douglas McCray challenged the denial of his motion for post-conviction relief, alleging ineffective assistance of counsel for failing to move to dismi…
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DAVIS, Judge.
Douglas McCray challenges the order of the trial court summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings on one of the grounds in McCray’s motion. We affirm the order of the trial court as to the other three grounds.
McCray alleged in his motion that he was convicted of possession of cocaine with intent to sell and sale of cocaine when the information charged only two counts of possession with intent to sell cocaine and did not charge sale of cocaine. He claimed that counsel was ineffective for failing to move to dismiss the information. In denying the motion, the trial court found that the information did charge possession of cocaine with the intent to sell and sale of cocaine. The trial court did not, however, attach those portions of the record (i.e., a copy of the information) conclusively refuting the claim.
On this court’s order, the record was supplemented, and after reviewing the information we conclude the trial court was in error. The caption of the information indicates that count I is a charge of possession of cocaine with intent to sell and count II is a charge of sale of cocaine. However, the narrative of count II is identical to the charge in count I. The information actually does allege two counts of possession with intent to sell. The record does not conclusively refute McCray’s claim.
We reverse the trial court’s order summarily denying the motion for post-conviction relief on this one ground and remand for an evidentiary hearing on the issue of the ineffectiveness of his counsel for failure to move to dismiss the information. See McLoyd v. State, 768 So. 2d 1159 (Fla. 2d DCA 2000).
Affirmed in part, reversed in part, and remanded.
NORTHCUTT, A.C.J., and CASANUEVA, J, Concur.