Summary
reversing and remanding on claim that counsel was ineffective for failing to object to defective jury instruction where record failed to refute allegation that instruction omitted a necessary element of offense
Summary of this case from Gary v. StateOpinion
No. 99-1241.
Opinion filed December 16, 1999.
An appeal from the Circuit Court for Bay County, Don T. Sirmons, Judge.
Appellant pro se.
Robert A. Butterworth, Attorney General; Trisha E. Meggs, Assistant Attorney General; Tallahassee, for Appellee.
In its order denying appellant's motion for post-conviction relief after an evidentiary hearing, the trial court did not address appellant's allegation that counsel rendered ineffective assistance in failing to object to an allegedly erroneous jury instruction. For the reasons explicated in the trial court's otherwise comprehensive and exhaustive order, neither the numerous other claims in appellant's motion, nor appellant's additional arguments on appeal present a basis for relief. But the record now before us does not refute the allegation that the jury instruction omitted a necessary element of the offense of which appellant was convicted. As to the claim that trial counsel was ineffective for failure to object to the defective instruction, therefore, remand is necessary, as the state concedes, so this one claim can be addressed by the trial court in the first instance. See Yarbrough v. State, 599 So.2d 245 (Fla. 1st DCA 1992).
Affirmed in part, reversed in part, and remanded.
ALLEN, BENTON, and BROWNING, JJ., CONCUR.