Opinion
No. 4D06-3181.
February 7, 2007.
Appeal from the Seventeenth Judicial Circuit Court, Broward County, John J. Murphy, III, J.
Dieurold Louis, Arcadia, pro se.
Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
Appellant Dieurold Louis appeals the trial court's order summarily denying his motion for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without discussion the trial court's summary denial of claims two through five of the motion, and reverse the trial court's summary denial of claim one.
In claim one, appellant alleged ineffective assistance of trial counsel for failure to argue in his motion to suppress that defective warnings under Miranda were given. In particular, appellant argued that he was not advised of the right to counsel during questioning. We find that this claim was legally sufficient under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See, e.g., Anthony v. State, 927 So.2d 1084 (Fla. 4th DCA 2006); Martelus v. State, 924 So.2d 881 (Fla. 4th DCA 2006); Stanch v. State, 917 So.2d 911 (Fla. 4th DCA 2005). Appellant's claim on this ground was not adequately refuted either by the State's response or record attachments to its response which were adopted by the trial court's order of denial.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Accordingly, we reverse and remand either for the attachment of portions of the record conclusively refuting this claim or for an evidentiary hearing.
Affirmed in part; reversed and remanded in part.
WARNER, POLEN and KLEIN, JJ., concur.