Opinion
Case No. 5D21-1008
03-11-2022
Harold SWIFT, Appellant, v. STATE of Florida, Appellee.
O.H. Eaton, Assistant Regional Counsel, of Office of Criminal Conflict & Civil Regional Counsel, Casselberry, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
O.H. Eaton, Assistant Regional Counsel, of Office of Criminal Conflict & Civil Regional Counsel, Casselberry, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
WALLIS, J.,
Appellant appeals the trial court's summary denial of his motion seeking postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Appellant's motion raised nine grounds of ineffective assistance of counsel. On appeal, he only challenges the summary denial of grounds one, two, three, five, and nine.
We affirm, without comment, the summary denial of grounds two, three, five, and nine. However, we reverse the denial of ground one, which claimed that trial counsel was ineffective for failing to request that the jury be instructed on the justifiable use of deadly force, because the trial court failed to attach records that conclusively refute this claim. See Smallwood v. State, 809 So. 2d 56, 58 (Fla. 5th DCA 2002) (reversing summary denial of postconviction motion for trial court to conduct evidentiary hearing because ineffective assistance of counsel claim was legally sufficient and court did not attach records to the order conclusively refuting appellant's claim); see also Curran v. State, 229 So. 3d 1266, 1269 (Fla. 1st DCA 2017) ("If the movant's claims are facially sufficient and not conclusively refuted by the record, the cause must be remanded for the trial court to either hold an evidentiary hearing or to attach record portions conclusively refuting the appellant's allegations." (quoting Morrison v. State, 860 So. 2d 458, 460 (Fla. 1st DCA 2003) )). Accordingly, we remand for the trial court to hold an evidentiary hearing on this ground.
AFFIRMED in Part, REVERSED in Part, and REMANDED with Instructions.
EISNAUGLE and HARRIS, JJ., concur.