Dunn v. State

District Court of Appeal of Florida

Dunn v. State

864 So. 2d 1235, 2004 Fla. App. LEXIS 763, 2004 WL 221304

CourtDistrict Court of Appeal of Florida

DecidedJanuary 29, 2004

DocketNo. 1D03-1961

StatusPublished

This text of 864 So. 2d 1235 (Dunn 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.

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Dunn v. State, 864 So. 2d 1235, 2004 Fla. App. LEXIS 763, 2004 WL 221304 (Fla. Ct. App. 2004).

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Opinion

PER CURIAM.

This is an appeal from the summary denial of appellant’s motion to vacate his judgment and sentence for the offense of second-degree murder pursuant to Florida Rule of Criminal Procedure 3.850. We affirm all issues raised, except that asserting the lower court erred in denying his motion pertaining to counsel’s failure to preserve and argue the defense that he committed the homicide in the heat of passion, which, if it had been raised, may have resulted in appellant’s conviction of the lesser offense of manslaughter. We agree that appellant has raised a prima facie claim for relief on this issue; accordingly, we reverse the summary denial and remand the case with directions for the trial court to attach portions of the record that refute this contention or hold an evi-dentiary hearing. See Lusk v. State, 498 So.2d 902 (Fla.1986) (rejecting defendant’s claim that counsel was ineffective for failing to present a defense based upon heat of passion, finding, after an evidentiary hearing, that the strategy of arguing self-defense only was reasonable under the circumstances).

AFFIRMED in part, REVERSED in part, and REMANDED.

ERVIN, BARFIELD and POLSTON, JJ., concur.

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PER CURIAM.

This is an appeal from the summary denial of appellant’s motion to vacate his judgment and sentence for the offense of second-degree murder pursuant to Florida Rule of Criminal Procedure 3.850. We affirm all issues raised, except that asserting the lower court erred in denying his motion pertaining to counsel’s failure to preserve and argue the defense that he committed the homicide in the heat of passion, which, if it had been raised, may have resulted in appellant’s conviction of the lesser offense of manslaughter. We agree that appellant has raised a prima facie claim for relief on this issue; accordingly, we reverse the summary denial and remand the case with directions for the trial court to attach portions of the record that refute this contention or hold an evi-dentiary hearing. See Lusk v. State, 498 So.2d 902 (Fla.1986) (rejecting defendant’s claim that counsel was ineffective for failing to present a defense based upon heat of passion, finding, after an evidentiary hearing, that the strategy of arguing self-defense only was reasonable under the circumstances).

AFFIRMED in part, REVERSED in part, and REMANDED.

ERVIN, BARFIELD and POLSTON, JJ., concur.

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864 So. 2d 1235, 2004 Fla. App. LEXIS 763, 2004 WL 221304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-state-fladistctapp-2004.

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