McCaskill v. State

666 So. 2d 1049, 1996 Fla. App. LEXIS 546, 1996 WL 34851

• Court: District Court of Appeal of Florida
• Decided: January 31, 1996
• Docket: No. 95-2229
• Status: Published

Opinion

PER CURIAM.

Cleophus McCaskill seeks reversal of an order denying his motion for post-conviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm the denial of relief as to all matters raised in the motion except the allegation that appellant advised his defense counsel of the identity of two witnesses, Cynthia Moore and Christopher Moore, who could identify the actual perpetrator of the offense of which appellant was convicted.¹ Appellant alleges that defense counsel did not make an inquiry of these two witnesses and hence did not incorporate these witnesses into appellant’s defense. We therefore remand for an evi-dentiary hearing regarding trial counsel’s alleged ineffective assistance for failure to investigate these two witnesses, or for the attachment of record excerpts refuting this ineffective assistance claim.

We affirm the denial of relief as to the other allegations because the remaining allegations are either matters already considered on direct appeal or are legally insufficient for failure to indicate prejudice.

AFFIRMED in part, REVERSED in part, and REMANDED.

MINER, WOLF and VAN NORTWICK, JJ., concur.

1 . Because no evidentiary hearing was entertained in this cause, we must accept as true those allegations not conclusively rebutted by the record. Harich v. State, 484 So.2d 1239 (Fla.1986).