Dunn v. State

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

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.