Opinion
No. 99-00167
Opinion filed June 2, 1999.
Appeal pursuant to Fla.R.App.P. 9.140(i) from the Circuit Court for Sarasota County; Nancy K. Donnellan, Judge.
Francis Pilkington appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We find merit in only one of Pilkington's claims and reverse on that point. The trial court's order is affirmed in all other respects.
Pilkington alleges that his trial counsel was ineffective for failing to object to the reasons given to support his upward departure sentence. Such a claim is cognizable in a rule 3.850 motion. See, e.g., Lang v. State, 571 So.2d 487 (Fla.2d DCA 1990) (holding that failure to object to a scoresheet error and thereby preventing review on direct appeal is cognizable as ineffective assistance of counsel). If Pilkington's allegations are true, neither reason given for departure is legally sufficient. Therefore, Pilkington's claim is facially sufficient. On remand the trial court may again summarily deny Pilkington's claim if it can be refuted by record attachments. If it cannot, the court shall hold an evidentiary hearing.
Affirmed in part; reversed in part; and remanded.
THREADGILL, A.C.J., and FULMER and GREEN, JJ., Concur.