CRAIG JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Craig Johnson (“Johnson”) was.convicted of possession of oxycodone, possession of cocaine with intent to sell, possession of cannabis, and possession of drug paraphernalia. Johnson appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Johnson raises several claims, and we affirm as to each, except part of his third claim. In claim three, Johnson alleges in part that his trial counsel was ineffective for failing to object to erroneous jury instructions on constructive possession because thé trial court failed to instruct .the júry that “if a person does not have exclusive possession of' a controlled substance, knowledge of its presence may not be inferred -or assumed.” See Fla. St. Jury Instr. (Crim.) 25.2 (2012). As to that part of claim three, we reverse and remand this case for the trial court to attach portions of the record -that conclusively refute the claim or to hold an evidentiary hearing. As to the remainder of the allegations contained in claim three, we affirm.
AFFIRMED in part; REVERSED in part; REMANDED;
SAWAYA, TORPY and BERGER, JJ., concur.
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Johnson v. State, 207 So. 3d 254 (Fla. 5th DCA 2016)…ER CURIAM. Craig Johnson appeals the second order summarily denying his rule 3.850 motion for postconviction relief, which was remanded back to the trial court for reconsideration of part of claim three alleged in the motion. See Johnson v. State, 186 So. 3d 629 (Fla. 5th DCA 2016). On remand the trial court denied the claim and attached a jury instruction, which does not conclusively refute the claim. Accordingly, we reverse the order under review and remand this case for an evidentiary hearing. REVERSED…