JESSIE J. SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in summarily denying one of the defendant's postconviction claims regarding ineffective assistance of counsel.
The defendant was convicted of burglary and alleged his trial counsel was ineffective for failing to request a jury instruction on trespass as a lesse…
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PER CURIAM.
Jessie J. Smith appeals from the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further review of one of Smith’s issues.
Smith was charged with burglary of a structure. A jury found him guilty of the charge. He alleges that his trial counsel was ineffective for not requesting an in struction on trespass as a lesser included offense. We find this issue legally sufficient and not refuted by the record provided. See Peffley v. State, 766 So. 2d 418 (Fla. 4th DCA 2000); State v. Wimberly, 498 So. 2d 929 (Fla.1986); Sims v. State, 740 So. 2d 1256 (Fla. 1st DCA 1999); Oehling v. State, 659 So. 2d 1226 (Fla. 5th DCA 1995).
The record provided by the trial court that shows that Smith admitted to being on the burglarized premises does not conclusively refute his claim. Accordingly, we reverse and remand on this issue for the tidal court to hold an evidentiary hearing. We affirm the trial court’s summary denial as to all other grounds raised in the motion.
POLEN, C.J., STEVENSON and TAYLOR, 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…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Wimberly, 498 So. 2d 929 (Fla. 1986)
- Oehling v. State, 659 So. 2d 1226 (Fla. 5th DCA 1995)
- Peffley v. State, 766 So. 2d 418 (Fla. 4th DCA 2000)
- Schnepel v. Gouty, 766 So. 2d 418 (Fla. 1st DCA 2000)
- Sims v. State, 740 So. 2d 1256 (Fla. 1st DCA 1999)