Henry v. State

453 So. 2d 1387, 9 Fla. L. Weekly 1688, 1984 Fla. App. LEXIS 14456

Opinion

ZEHMER, Judge.

Harold Lee Henry appeals the trial court’s order denying his motion filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. After Henry’s appeal from final judgment was affirmed on appeal, he filed the motion for postconviction relief on four grounds. The trial court correctly denied the motion on the first three grounds. Only the ground based on ineffective assistance of counsel at trial requires further consideration in the trial court.

The trial court order denied the appellant’s motion because each ground was “clearly encompassed in the record and available to defendant on his appeal.” In so ruling, the trial court apparently overlooked the well-established proposition that ineffective assistance of counsel in the trial court is ordinarily not reviewable on direct appeal but is more properly asserted in a rule 3.850 motion. Perri v. State, 441 So.2d 606, 607 (Fla.1983); State v. Barber, 301 So.2d 7, 9 (Fla.1974).

We reverse and remand for the trial court to either attach those portions of the record which conclusively show that Henry is not entitled to relief on this ground or hold an evidentiary hearing on the motion, if necessary.

AFFIRMED IN PART and REVERSED IN PART.

SMITH and JOANOS, JJ., concur.