Osborne v. State

District Court of Appeal of Florida

Osborne v. State

798 So. 2d 39, 2001 Fla. App. LEXIS 14658, 2001 WL 1230832

CourtDistrict Court of Appeal of Florida

DecidedOctober 17, 2001

DocketNo. 1D00-3894

StatusPublished

Cited by1 cases

This text of 798 So. 2d 39 (Osborne 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.

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Osborne v. State, 798 So. 2d 39, 2001 Fla. App. LEXIS 14658, 2001 WL 1230832 (Fla. Ct. App. 2001).

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Opinion

PER CURIAM.

Appellant seeks review of the trial court’s order which summarily denied his rule 3.850 motion as successive. We conclude that the court erred in this ruling because Appellant’s prior postconviction motion was properly filed as a rule 3.800(a) motion. See Ingledue v. State, 734 So.2d 518 (Fla. 5th DCA 1999).

Moreover, we conclude that Appellant’s claims regarding trial counsel’s failure to [40]*40communicate with him and failure to investigate and call witnesses are facially sufficient. We therefore reverse and remand for the trial court to either attach record excerpts which conclusively refute Appellant’s claims or to hold an evidentiary hearing. We affirm the summary denial of the remaining claims.

AFFIRMED in part, REVERSED in part, and REMANDED.

ALLEN, C.J., BOOTH and BENTON, JJ„ CONCUR.

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