Summary
holding that failure to request a jury instruction on a necessarily lesser included offense constitutes ineffective assistance of counsel
Summary of this case from Lenoir v. StateOpinion
No. 88-1080.
June 17, 1988.
Appeal pursuant to Fla.R.App.P. 9.140(g) from the Circuit Court for Pasco County; Maynard F. Swanson, Judge.
John R. Newton appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Only one allegation in Newton's motion, ineffective assistance of trial counsel for failure to request a jury instruction on a necessarily lesser included offense, is facially sufficient. See Wilcott v. State, 509 So.2d 261 (Fla. 1987); Spaziano v. State, 522 So.2d 525 (Fla.2d DCA 1988); Bateson v. State, 516 So.2d 280 (Fla. 1st DCA 1987); Tessier v. State, 462 So.2d 123 (Fla. 2d DCA 1985). The trial court's order summarily denying this allegation and the attachments thereto do not refute Newton's allegation.
Accordingly, we reverse the trial court's order and remand for further consideration of this claim. On remand, unless the files and records conclusively show that Newton is not entitled to relief, the trial court shall order the state to file an answer. After receipt of the answer, the trial court shall determine whether an evidentiary hearing is required. If the trial court should again deny the motion, Newton will have thirty days in which to appeal. The trial court's denial of Newton's other allegations is affirmed.
SCHOONOVER, A.C.J., and LEHAN and PARKER, JJ., concur.