KELVIN HUDSON, JR. v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: November 24, 2021
• Docket: 21-1241
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed November 24, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-1241 Lower Tribunal No. F15-21629 ________________

Kelvin Hudson, Jr., Appellant,

vs.

The State of Florida, Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Mavel Ruiz, Judge.

Clayton R. Kaeiser, for appellant.

Ashley Moody, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.

Before FERNANDEZ, C.J., and EMAS, and BOKOR, JJ.

PER CURIAM. Kelvin Hudson, Jr., appeals the trial court’s summary denial of his

motion for post-conviction relief based on ineffective assistance of trial

counsel regarding an alleged, unpreserved error pertaining to a jury

instruction on a lesser included offense. In his amended motion for post-

conviction relief, appellant claimed that his trial counsel was also ineffective

for failing to file a motion to dismiss based on stand your ground immunity.

The trial court did not address the latter allegation when it denied the motion

for post-conviction relief.

We affirm the order on appeal regarding the ineffective assistance of

counsel claim pertaining to the jury instruction issue; however, because the

trial court failed to address the issue regarding ineffective assistance of

counsel for failing to file a motion to dismiss based on stand your ground

immunity, we reverse and remand to the trial court for further proceedings to

consider and rule on this issue. See McAbee v. State, 873 So. 2d 545 (Fla.

2d DCA 2004).

Affirmed in part, reversed in part and remanded with instructions.