Barritt v. State

District Court of Appeal of Florida

Barritt v. State

123 So. 3d 149, 2013 WL 5630035, 2013 Fla. App. LEXIS 16488

CourtDistrict Court of Appeal of Florida

DecidedOctober 16, 2013

DocketNo. 1D13-1442

StatusPublished

This text of 123 So. 3d 149 (Barritt 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

Barritt v. State, 123 So. 3d 149, 2013 WL 5630035, 2013 Fla. App. LEXIS 16488 (Fla. Ct. App. 2013).

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Opinion

PER CURIAM.

Appellant, Anthony Barritt, appeals an order summarily denying his motion and amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We agree with Appellant that the trial court erred in denying his claim, labeled as ground five in his amended motion, that trial counsel was ineffective in failing to advise him of a double jeopardy defense as to the charge of possession of child pornography with intent to promote and the charges of possession of child pornography.¹ According to Appellant’s motion, he would not have accepted the negotiated plea had he been made aware of the defense. Contrary to the trial court’s conclusion that Appellant was barred from raising this claim based upon his negotiated plea, such a plea does not preclude an ineffective assistance of counsel claim based on counsel’s alleged failure to challenge the charged offenses on double jeopardy grounds. See Pearson v. State, 867 So.2d 517, 519 (Fla. 1st DCA 2004). We, therefore, reverse the order as to the denial of this claim and remand with instructions that the trial court either attach portions of the record conclusively refuting the claim or conduct an evidentia-ry hearing. We otherwise affirm.

AFFIRMED in part; REVERSED in part; and REMANDED with instructions.

LEWIS, C.J., WOLF and MAKAR, JJ., concur.

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PER CURIAM.

Appellant, Anthony Barritt, appeals an order summarily denying his motion and amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We agree with Appellant that the trial court erred in denying his claim, labeled as ground five in his amended motion, that trial counsel was ineffective in failing to advise him of a double jeopardy defense as to the charge of possession of child pornography with intent to promote and the charges of possession of child pornography.¹ According to Appellant’s motion, he would not have accepted the negotiated plea had he been made aware of the defense. Contrary to the trial court’s conclusion that Appellant was barred from raising this claim based upon his negotiated plea, such a plea does not preclude an ineffective assistance of counsel claim based on counsel’s alleged failure to challenge the charged offenses on double jeopardy grounds. See Pearson v. State, 867 So.2d 517, 519 (Fla. 1st DCA 2004). We, therefore, reverse the order as to the denial of this claim and remand with instructions that the trial court either attach portions of the record conclusively refuting the claim or conduct an evidentia-ry hearing. We otherwise affirm.

AFFIRMED in part; REVERSED in part; and REMANDED with instructions.

LEWIS, C.J., WOLF and MAKAR, JJ., concur.

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Bluebook (online)

123 So. 3d 149, 2013 WL 5630035, 2013 Fla. App. LEXIS 16488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barritt-v-state-fladistctapp-2013.

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