DAVID BLAKE JOHNSTON
v.
STATE OF FLORIDA
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Trial counsel's failure to file a motion for new trial on the ground that the verdict was contrary to the weight of the evidence constitutes a cognizable claim of ineffective assistance of counsel that must be addressed on postconviction review rather than summarily denied.
[1] A postconviction claim that trial counsel was ineffective for failing to file a motion for new trial on the ground that the verdict was contrary to the weight of the evid…
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Join FLexlaw to unlock all legal intelligenceDavid Blake Johnston appealed from an order summarily denying his Rule 3.850 postconviction motion. Johnston's claim was that his trial counsel was in…
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LABRIT, Judge.
David Blake Johnston appeals from the order summarily denying
his motion filed pursuant to Florida Rule of Criminal Procedure 3.850.
We reverse for the postconviction court to address Mr. Johnston's claim
that trial counsel was ineffective for failing to file a motion for new trial
on the ground that the verdict was contrary to the weight of the evidence.
The postconviction court shall either attach records that refute this claim
or hold an evidentiary hearing. We affirm in all other respects.
2
Affirmed in part, reversed in part, and remanded.
KHOUZAM and ROTHSTEIN-YOUAKIM, JJ., Concur.
Opinion subject to revision prior to official publication.