Pilkington v. State
This text of 734 So. 2d 1153 (Pilkington 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
Francis J. PILKINGTON, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, Second District.
PER CURIAM.
Francis Pilkington appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We find merit in only one of Pilkington's claims and reverse on that point. The trial court's order is affirmed in all other respects.
Pilkington alleges that his trial counsel was ineffective for failing to object to the reasons given to support his upward departure sentence. Such a claim is cognizable in a rule 3.850 motion. See, e.g., Lang v. State, 571 So.2d 487 (Fla. 2d DCA 1990) (holding that failure to object to a scoresheet error and thereby preventing review on direct appeal is cognizable as ineffective assistance of counsel). If Pilkington's allegations are true, neither reason given for departure is legally sufficient. Therefore, Pilkington's claim is facially sufficient. On remand the trial court may again summarily deny Pilkington's claim if it can be refuted by record attachments. If it cannot, the court shall hold an evidentiary hearing.
Affirmed in part; reversed in part; and remanded.
THREADGILL, A.C.J., and FULMER and GREEN, JJ., Concur.
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734 So. 2d 1153, 1999 WL 346130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pilkington-v-state-fladistctapp-1999.