Miller v. State

793 So. 2d 1141, 2001 Fla. App. LEXIS 12829, 2001 WL 1035957

Opinion

PER CURIAM.

This is an appeal from an order summarily denying a motion for postconviction relief under rule 3.850. We conclude that the trial court erred on one point. The allegation that defense counsel faded to present an available defense to the charge of robbery was sufficient to support a claim of ineffective assistance of counsel. See McKinney v. State, 722 So.2d 933 (Fla. 1st DCA 1998). The records attached to the order show that there was ample evidence the defendant had committed the act, but that does not refute the defendant’s argument that his lawyer should have presented an affirmative defense. Accordingly, we reverse on this point and remand the case to the trial court for an evidentiary hearing or attachment of records conclusively refuting the claim. In all other respects, the order is affirmed.

Affirmed in part and reversed in part.

BOOTH, KAHN and PADOVANO, JJ., CONCUR.