Gaston v. State

District Court of Appeal of Florida

Gaston v. State

735 So. 2d 566, 1999 Fla. App. LEXIS 7529, 1999 WL 373376

CourtDistrict Court of Appeal of Florida

DecidedJune 9, 1999

DocketNo. 99-00646

StatusPublished

Cited by1 cases

This text of 735 So. 2d 566 (Gaston 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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Gaston v. State, 735 So. 2d 566, 1999 Fla. App. LEXIS 7529, 1999 WL 373376 (Fla. Ct. App. 1999).

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Opinion

PER CURIAM.

Richard Gaston appeals the denial on remand of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Gaston raised five grounds for relief in his motion. When this court considered his first appeal we reversed and remanded on one issue only. See Gaston v. State, 721 So.2d 399 (Fla. 2d DCA 1998). Although we did not explicitly hold that Gaston’s other claims were without merit, that holding is implicit in our decision.

However, we must again reverse the trial court’s order denying Gaston’s claim that his counsel was ineffective in failing to file a motion to suppress. Although the court has now attached the portions of the record upon which it relied, that record does not refute Gaston’s claim that the police officers only discovered the evidence in question after unlawfully entering his secured backyard. See State v. Morsman, 394 So.2d 408 (Fla.1981). Therefore, we reverse and remand for an evidentiary hearing on this issue.

Affirmed in part; reversed in part; and remanded.

ALTENBERND, A.C.J., and FULMER and SALCINES, JJ., Concur.

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PER CURIAM.

Richard Gaston appeals the denial on remand of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Gaston raised five grounds for relief in his motion. When this court considered his first appeal we reversed and remanded on one issue only. See Gaston v. State, 721 So.2d 399 (Fla. 2d DCA 1998). Although we did not explicitly hold that Gaston’s other claims were without merit, that holding is implicit in our decision.

However, we must again reverse the trial court’s order denying Gaston’s claim that his counsel was ineffective in failing to file a motion to suppress. Although the court has now attached the portions of the record upon which it relied, that record does not refute Gaston’s claim that the police officers only discovered the evidence in question after unlawfully entering his secured backyard. See State v. Morsman, 394 So.2d 408 (Fla.1981). Therefore, we reverse and remand for an evidentiary hearing on this issue.

Affirmed in part; reversed in part; and remanded.

ALTENBERND, A.C.J., and FULMER and SALCINES, JJ., Concur.

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735 So. 2d 566, 1999 Fla. App. LEXIS 7529, 1999 WL 373376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaston-v-state-fladistctapp-1999.

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