Manka v. State

874 So. 2d 13, 2004 Fla. App. LEXIS 3749, 2004 WL 574530

Opinion

PER CURIAM.

Henry Jude Manka appeals a trial court order which denied his motion for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of the motion as it was not properly verified. See Gorham v. State, 494 So.2d 211 (Fla.1986); Scott v. State, 464 So.2d 1171 (Fla.1986). Our af-firmance is on the merits as well, except for appellant’s claim of ineffective assistance of trial counsel for failure to request a complete self defense jury instruction. We find that this claim was sufficient under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that the trial court erred in rejecting it simply because appellant’s co-defendant was convicted in a separate trial where a self defense instruction had been given to the jury.

Therefore, we affirm with prejudice as to all of appellant’s other claims, but without prejudice to appellant’s right to file a properly verified, amended motion for post conviction relief within thirty days of this court’s mandate, raising the claim of ineffective assistance of trial counsel for failure to request a self defense jury instruction.

SHAHOOD, TAYLOR and HAZOURI, JJ., concur.