Poole v. State

746 So. 2d 1207, 1999 WL 1188794

Opinion

746 So.2d 1207 (1999)

Patrick POOLE, Appellant,
v.
STATE of Florida, Appellee.

No. 99-1241.

District Court of Appeal of Florida, First District.

December 16, 1999.

Appellant pro se.

Robert A. Butterworth, Attorney General; Trisha E. Meggs, Assistant Attorney General; Tallahassee, for Appellee.

PER CURIAM.

In its order denying appellant's motion for post-conviction relief after an evidentiary hearing, the trial court did not address appellant's allegation that counsel rendered ineffective assistance in failing to object to an allegedly erroneous jury instruction. For the reasons explicated in the trial court's otherwise comprehensive and exhaustive order, neither the numerous other claims in appellant's motion, nor appellant's additional arguments on appeal present a basis for relief. But the record now before us does not refute the allegation that the jury instruction omitted a necessary element of the offense of which appellant was convicted. As to the claim that trial counsel was ineffective for failure to object to the defective instruction, therefore, remand is necessary, as the state concedes, so this one claim can be addressed by the trial court in the first instance. See Yarbrough v. State, 599 So.2d 245 (Fla. 1st DCA 1992).

Affirmed in part, reversed in part, and remanded.

ALLEN, BENTON, and BROWNING, JJ., CONCUR.