THOMAS LEROY BOWEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the denial of most postconviction claims under Rule 3.850 but reversed and remanded the claim that counsel was ineffective for failing to move for judgment of acquittal on the false verification charge, finding the claim facially sufficient and not refuted by the record.
A claim that counsel was ineffective for failing to move for judgment of acquittal on a charge is facially sufficient and must proceed to an evidentiary hearing or record attachment when not conclusively refuted by the trial court's attachments.
[1] A trial court's summary denial of an ineffective assistance claim based on counsel's failure to move for judgment of acquittal is reversible error when the claim is facia…
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Join FLexlaw to unlock all legal intelligence“Because the trial court's attachments are insufficient to refute the appellant's claim that counsel was ineffective for failing to move for a judgment of acquittal on the basis that there was insufficient evidence to support the aggravated battery charge, we reverse the trial court's summary denial and remand for the attachment of further record portions that conclusively refute the appellant's claim or for an evidentiary hearing”
Court citing Nguyen v. State to explain the standard for reviewing ineffective assistance claims based on failure to move for judgment of acquittal
Bowen filed a postconviction motion and amended motion under Florida Rule of Criminal Procedure 3.850 challenging his conviction, including a claim th…
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The appellant challenges the denial of a postconviction motion and amended motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm, without discussion, the denial of all but one of appellant’s claims. We reverse and remand ground five of appellant’s March 23, 2008, motion. In that ground, the appellant asserts that counsel was ineffective for failing to move for a judgment of acquittal on the charge of false verification of a pawn slip. The claim is facially sufficient and not refuted by any record attachments.1 Cf. Nguyen v. State, 858 So.2d 1259 (Fla. 1st DCA 2003) (“Because the trial court’s attachments are insufficient to refute the appellant’s claim that counsel was ineffective for failing to move for a judgment of acquittal on the basis that there was insufficient evidence to support the aggravated *1131battery charge, we reverse the trial court’s summary denial and remand for the attachment of further record portions that conclusively refute the appellant’s claim or for an evidentiary hearing”). Thus, we reverse and remand for the trial court to attach portions of the record conclusively showing that the appellant is not entitled to relief or to conduct an evidentiary hearing.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
WEBSTER, LEWIS, and THOMAS, JJ., concur.