Opinion
No. 4D10–3180.
2013-07-24
Primitivo R. MORALES, Appellant, v. STATE of Florida, Appellee.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 04–16003 CF10A. Primitivo R. Morales, Carrabelle, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 04–16003 CF10A.
Primitivo R. Morales, Carrabelle, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Primitivo Morales appeals the summary denial of his six point postconviction motion. SeeFla. R.Crim. P. 3.850. Because the record does not refute one of the claims raised, we reverse, in part, and affirm the remaining claims without further discussion.
Following a jury trial, Morales was convicted of one count of Sexual Battery by a Person in a Position of Familial or Custodial Authority (Count I) and one count of Lewd or Lascivious Molestation (Count II) with a victim older than twelve but younger than sixteen years old. He was sentenced to thirty years imprisonment on Count I, followed by fifteen years sex offender probation on Count II.
Morales alleges, in Claim 5, that counsel misadvised him that the jury would learn the nature of his prior convictions had he chosen to testify in his own defense. He ultimately decided not to testify based upon this alleged advice. See Curtis v. State, 689 So.2d 423, 423 (Fla. 4th DCA 1997); Hicks v. State, 666 So.2d 1021, 1023 (Fla. 4th DCA 1996). The State concedes that an evidentiary hearing is warranted on this claim. We remand for further proceedings.
Affirmed in Part, Reversed in Part and Remanded.