Opinion
No. 4D00-1762
Opinion filed August 23, 2000 JULY TERM 2000
Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Joyce A. Julian, Judge; L.T. Case No. 95-19645CF10.
Charles L. Peffley, Miami, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
Charles L. Peffley 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 two of Peffley's issues.
Peffley was charged with and, after a jury trial, convicted of attempted second degree murder. Peffley alleges that his trial counsel was ineffective for not requesting an instruction on attempted voluntary manslaughter, and for objecting to the trial court's offer to instruct on aggravated battery as a lesser included offense. We find both issues legally sufficient and not refuted by the record provided. See 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).
Accordingly, we reverse and remand on this issue for the trial court to attach portions of the record that conclusively refute appellant's claim or to hold an evidentiary hearing. We affirm the trial court's summary denial as to all other grounds raised in the motion.
DELL, STEVENSON and HAZOURI, JJ., concur.