JOSE ENRIQUE ORTIZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
We reverse the summary denial of Appellant’s rule 3.850 motion for post-conviction relief as to one of its multiple claims.
Appellant asserts in ground four that counsel was ineffective for failing to object to a departure sentence entered without written reasons. The order does not include or attach portions of the record conclusively showing that the appellant is not entitled to relief.
Appellant’s allegation that his attorney was ineffective, for failing to object to a departure sentence not accompanied by written reasons, is legally sufficient. See Moore v. State, 747 So. 2d 427 (Fla. 2d DCA 1999).
Therefore, as to this ground, we reverse with direction to the trial court to either attach portions of the record refuting Appellant’s claim or to hold an evidentiary hearing. In all other respects, the order is affirmed.
POLEN, C.J., STONE and HAZOURI, JJ., concur.
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Sanders v. State, 946 So. 2d 953 (Fla. 2006)…ld that “failure to request an instruction on a necessarily lesser-included offense is a legally sufficient ground to support an ineffective assistance of counsel claim.” Willis, 840 So. 2d at 1136. The court cited its own precedent, Smith v. State, 807 So. 2d 755 (Fla. 4th DCA 2002), to support this conclusion. It certified conflict with Sanders. In Sanders, the First District upheld the trial court’s summary denial of Sanders’s motion. 847 So. 2d at 506. It held that trial counsel’s failure to request a le…
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Solomon Willis v. State, 840 So. 2d 1135 (Fla. 4th DCA 2003)…result, this issue could not have been raised on direct appeal. The failure to request an instruction on a necessarily lesser-included offense is a legally sufficient ground to support an ineffective assistance of counsel claim. See Smith v. State, 807 So. 2d 755 (Fla. 4th DCA 2002). In addition, “[t]he failure to preserve a potentially reversible error for appeal has been found to constitute ineffective assistance of counsel, sufficient to support a rule 3.850 motion.” See Daniels v. State, 806 So. 2d 563,…1 / 2
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Charles v. State, 890 So. 2d 542 (Fla. 4th DCA 2005)…m was colorable under rule 3.850, and the trial court erred in summarily denying it without conducting an evidentiary hearing or attaching portions of the record to refute it. See Willis v. State, 840 So. 2d 1135 (Fla. 4th DCA 2003); Smith v. State, 807 So. 2d 755 (Fla. 4th DCA 2002); Peffley v. State, 766 So. 2d 418 (Fla. 4th DCA 2000). We acknowledge conflict with the First District on this issue, as we did in Willis, 840 So. 2d at 1137. AFFIRMED in part, REVERSED in part and REMANDED. KLEIN, STEVENSON…
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- Iesha Davis v. State, 747 So. 2d 427 (Fla. 2d DCA 1999)