Gilyard v. State

District Court of Appeal of Florida

Gilyard v. State

872 So. 2d 924, 2004 Fla. App. LEXIS 2927, 2004 WL 438563

District Court of Appeal of Florida·Decided March 11, 2004·No. No. 1D03-2477·Published

Opinion

PER CURIAM.

The appellant, Lamontaque Gilyard, appeals the denial of various postconviction claims. We affirm without discussion all but one claim. In appellant’s second claim, he alleges his defense counsel was ineffective for failing to file a legally sufficient motion for a new trial. The trial court failed to address this claim. Accordingly, we reverse and remand for the trial court to either attach portions of the record conclusively refuting the appellant’s claim, or for an evidentiary hearing. See Parker v. Dugger, 660 So.2d 1386, 1389 (Fla.1995) (“We will not rule upon the merits of those claims when the trial court never reached the merits below”).

DAVIS, VAN NORTWICK and HAWKES, JJ., concur.

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PER CURIAM.

The appellant, Lamontaque Gilyard, appeals the denial of various postconviction claims. We affirm without discussion all but one claim. In appellant’s second claim, he alleges his defense counsel was ineffective for failing to file a legally sufficient motion for a new trial. The trial court failed to address this claim. Accordingly, we reverse and remand for the trial court to either attach portions of the record conclusively refuting the appellant’s claim, or for an evidentiary hearing. See Parker v. Dugger, 660 So.2d 1386, 1389 (Fla.1995) (“We will not rule upon the merits of those claims when the trial court never reached the merits below”).

DAVIS, VAN NORTWICK and HAWKES, JJ., concur.

Gilyard v. State, 872 So. 2d 924, 2004 Fla. App. LEXIS 2927, 2004 WL 438563 (Fla. Ct. App. 2004).

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