Balkey v. State

District Court of Appeal of Florida

Balkey v. State

853 So. 2d 511, 2003 Fla. App. LEXIS 11762, 2003 WL 21800691

CourtDistrict Court of Appeal of Florida

DecidedAugust 6, 2003

DocketNo. 4D02-4900

StatusPublished

This text of 853 So. 2d 511 (Balkey v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Balkey v. State, 853 So. 2d 511, 2003 Fla. App. LEXIS 11762, 2003 WL 21800691 (Fla. Ct. App. 2003).

Pincite

Opinion

PER CURIAM.

Bruce Balkey appeals the summary denial of his postconviction motion. The trial court denied the motion as untimely without addressing the merits of Balkey’s claims. However, as Balkey argued below,' the motion was timely filed based on Florida Rule of Criminal Procedure 3.040.

Two of the claims raised in the postcon-viction motion are legally sufficient and not refuted by any record attachments: (1) Balkey alleged that he received ineffective assistance of counsel because his attorney did not object that a lesser offense of the criminal mischief charge was stated incorrectly on the verdict form; and (2) he alleged that his attorney should have objected when the court imposed a thousand dollars restitution in this case because, based on the jury verdict, restitution should have been less than a thousand dollars.

We reverse and remand for an eviden-tiary hearing or for attachment of portions of the record conclusively demonstrating that appellant is entitled to no relief.

REVERSED and REMANDED.

WARNER, POLEN and STEVENSON, JJ., concur.

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PER CURIAM.

Bruce Balkey appeals the summary denial of his postconviction motion. The trial court denied the motion as untimely without addressing the merits of Balkey’s claims. However, as Balkey argued below,' the motion was timely filed based on Florida Rule of Criminal Procedure 3.040.

Two of the claims raised in the postcon-viction motion are legally sufficient and not refuted by any record attachments: (1) Balkey alleged that he received ineffective assistance of counsel because his attorney did not object that a lesser offense of the criminal mischief charge was stated incorrectly on the verdict form; and (2) he alleged that his attorney should have objected when the court imposed a thousand dollars restitution in this case because, based on the jury verdict, restitution should have been less than a thousand dollars.

We reverse and remand for an eviden-tiary hearing or for attachment of portions of the record conclusively demonstrating that appellant is entitled to no relief.

REVERSED and REMANDED.

WARNER, POLEN and STEVENSON, JJ., concur.

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Bluebook (online)

853 So. 2d 511, 2003 Fla. App. LEXIS 11762, 2003 WL 21800691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/balkey-v-state-fladistctapp-2003.