Upshaw v. State

805 So. 2d 908, 2001 Fla. App. LEXIS 14882, 2001 WL 1245364

Opinion

SILBERMAN, Judge.

Ronnie Upshaw appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion. We affirm in part and reverse in part.

Upshaw was arrested for possession of cocaine and, based on the arrest, was adjudicated guilty of violation of probation. After Upshaw was sentenced for the violation of probation, the State nolle-prossed the possession charge. In his rule 3.850 motion, Upshaw claimed that his attorney was ineffective for failing to seek to suppress the evidence (cocaine) seized from Upshaw. In its order denying relief the trial court did not address the substance of this claim because the charge was nolle-prossed. However, because the charge was the basis of the probation revocation and Upshaw’s claim is facially sufficient, the claim must be addressed on its merits. See Williams v. State, 717 So.2d 1066 (Fla. 2d DCA 1998).

The remainder of Upshaw’s claims are without merit, and the trial court is affirmed in its denial of those claims.

Affirmed in part, reversed in part, and remanded.

CASANUEVA, A.C.J., and STRINGER, J., Concur.