Newton v. State
This text of 527 So. 2d 876 (Newton v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
John R. NEWTON, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, Second District.
PER CURIAM.
John R. Newton appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Only one allegation in Newton's motion, ineffective assistance of trial counsel for failure to request a jury instruction on a necessarily lesser included offense, is facially sufficient. See Wilcott v. State, 509 So.2d 261 (Fla. 1987); Spaziano v. State, 522 So.2d 525 (Fla.2d DCA 1988); Bateson v. State, 516 So.2d 280 (Fla. 1st DCA 1987); Tessier v. State, 462 So.2d 123 (Fla. 2d DCA 1985). The trial court's order summarily denying this allegation and the attachments thereto do not refute Newton's allegation.
Accordingly, we reverse the trial court's order and remand for further consideration of this claim. On remand, unless the files and records conclusively show that Newton is not entitled to relief, the trial court shall order the state to file an answer. After receipt of the answer, the trial court shall determine whether an evidentiary hearing is required. If the trial court should again deny the motion, Newton will have thirty days in which to appeal. The trial court's denial of Newton's other allegations is affirmed.
SCHOONOVER, A.C.J., and LEHAN and PARKER, JJ., concur.
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527 So. 2d 876, 1988 WL 69435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newton-v-state-fladistctapp-1988.