DAVID BLAKE JOHNSTON v. STATE OF FLORIDA

Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

DAVID BLAKE JOHNSTON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 2D23-13

September 29, 2023

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Manatee County; Frederick P. Mercurio, Judge.

Brett McIntosh and Kevin M. Griffith of Brett D. McIntosh, P.A., Sarasota, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.

LABRIT, Judge.

David Blake Johnston appeals from the order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse for the postconviction court to address Mr. Johnston's claim that trial counsel was ineffective for failing to file a motion for new trial on the ground that the verdict was contrary to the weight of the evidence. The postconviction court shall either attach records that refute this claim or hold an evidentiary hearing. We affirm in all other respects.

Affirmed in part, reversed in part, and remanded.

KHOUZAM and ROTHSTEIN-YOUAKIM, JJ., Concur.

Opinion subject to revision prior to official publication.