McPhee v. State

District Court of Appeal of Florida

McPhee v. State

728 So. 2d 332, 1999 Fla. App. LEXIS 2557, 1999 WL 123722

District Court of Appeal of Florida·Decided March 10, 1999·No. No. 98-2134·Published·Cited by 1 cases

Opinion

PER CURIAM.

We reverse the order summarily denying defendant’s motion for posteonviction relief as to grounds two (c) and three of defendant’s motion and remand for an evidentiary hearing. The record before this Court does not conclusively refute defendant’s allegations of ineffective assistance of trial counsel as to his attorney’s misadvice concerning the potential consequence of testifying and failure to call an alibi witness. See Fla. R.App. P. 9.140(i); Fla. R.Crim. P. 3.850(d); Wilcox v. State, 622 So.2d 132 (Fla. 3d DCA 1993). We affirm the denial of posteonviction relief on the remaining issues.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

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PER CURIAM.

We reverse the order summarily denying defendant’s motion for posteonviction relief as to grounds two (c) and three of defendant’s motion and remand for an evidentiary hearing. The record before this Court does not conclusively refute defendant’s allegations of ineffective assistance of trial counsel as to his attorney’s misadvice concerning the potential consequence of testifying and failure to call an alibi witness. See Fla. R.App. P. 9.140(i); Fla. R.Crim. P. 3.850(d); Wilcox v. State, 622 So.2d 132 (Fla. 3d DCA 1993). We affirm the denial of posteonviction relief on the remaining issues.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

McPhee v. State, 728 So. 2d 332, 1999 Fla. App. LEXIS 2557, 1999 WL 123722 (Fla. Ct. App. 1999).

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Opinion

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