Smith v. State, 807 So. 2d 755

PER CURIAM.

Jessie J. Smith 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 one of Smith‘s issues.

Smith was charged with burglary of a structure. A jury found him guilty of the charge. He alleges that his trial counsel was ineffective for not requesting an instruction on trespass as a lesser included offense. We find this issue legally sufficient and not refuted by the record provided. See Peffley v. State, 766 So.2d 418 (Fla. 4th DCA 2000); 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).

The record provided by the trial court that shows that Smith admitted to being on the burglarized premises does not conclusively refute his claim. Accordingly, we reverse and remand on this issue for the trial court to hold an evidentiary hearing. We affirm the trial court‘s summary denial as to all other grounds raised in the motion.

POLEN, C.J., STEVENSON and TAYLOR, JJ., concur.

Case Details

Case Name: Smith v. State

Court Name: District Court of Appeal of Florida

Date Published: Feb 13, 2002

Citations: 807 So. 2d 755; 2002 WL 215301; 4D01-3342

Docket Number: 4D01-3342

Court Abbreviation: Fla. Dist. Ct. App.