Brown v. State

956 So. 2d 1264, 2007 Fla. App. LEXIS 8288, 2007 WL 1544131

Opinion

PER CURIAM.

Monte Brown appeals the trial court’s denial of his motion for postconviction relief under Florida Rule of Crim. Procedure 3.850. We affirm in all respects except one, that being the trial court’s denial of the motion as to Ground 5.

We reverse and remand the denial of Brown’s motion as to Ground 5 alleging that trial counsel rendered ineffective assistance by advising Brown not to take the stand even after the trial court indicated that his testimony would likely be necessary to warrant a justifiable use of deadly force jury instruction, which was not ultimately given. Because the record before this Court does not refute Brown’s claims of self-defense or reveal the nature of trial counsel’s advice to him regarding taking the stand, we reverse and remand to the trial court for reconsideration of Ground 5 of Brown’s Rule 3.850 motion. On remand, the trial court shall either provide record attachments conclusively refuting Brown’s claim or conduct an evidentiary hearing.

Affirmed In Part; Reversed and Remanded In Part.

GUNTHER, FARMER and MAY, JJ„ concur.