WILLICH v. State

District Court of Appeal of Florida

WILLICH v. State

79 So. 3d 76, 2011 Fla. App. LEXIS 20271, 2011 WL 6352302

CourtDistrict Court of Appeal of Florida

DecidedDecember 20, 2011

Docket1D11-2629

StatusPublished

Cited by1 cases

This text of 79 So. 3d 76 (WILLICH 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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WILLICH v. State, 79 So. 3d 76, 2011 Fla. App. LEXIS 20271, 2011 WL 6352302 (Fla. Ct. App. 2011).

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Opinion

PER CURIAM.

Allen Willieh appeals the denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm except insofar as his claim of ineffective assistance of counsel, set forth in ground two of the amended motion for postconviction relief. In ground two, Mr. Willieh stated a cognizable claim of ineffective assistance of counsel in alleging that trial counsel failed to impeach Patricia Sa-lamanca with her prior inconsistent statement to investigating officers. See, e.g., Delarosa v. State, 24 So.3d 741, 742 (Fla. 2d DCA 2009) (concluding that allegation that trial counsel was ineffective for failing to impeach a state witness with a prior inconsistent statement was legally sufficient). Because the claim is not conclusively refuted by the record on appeal, we reverse the trial court’s order as to disposition of ground two only, and remand to the trial court with directions that it either attach portions of the record conclusively refuting the allegations in ground two of the amended motion, or, in the alternative, conduct an evidentiary hearing on the allegations.

Affirmed in part, reversed in part, and remanded with directions.

BENTON, C.J., VAN NORTWICK, and SWANSON, JJ., concur.

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PER CURIAM.

Allen Willieh appeals the denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm except insofar as his claim of ineffective assistance of counsel, set forth in ground two of the amended motion for postconviction relief. In ground two, Mr. Willieh stated a cognizable claim of ineffective assistance of counsel in alleging that trial counsel failed to impeach Patricia Sa-lamanca with her prior inconsistent statement to investigating officers. See, e.g., Delarosa v. State, 24 So.3d 741, 742 (Fla. 2d DCA 2009) (concluding that allegation that trial counsel was ineffective for failing to impeach a state witness with a prior inconsistent statement was legally sufficient). Because the claim is not conclusively refuted by the record on appeal, we reverse the trial court’s order as to disposition of ground two only, and remand to the trial court with directions that it either attach portions of the record conclusively refuting the allegations in ground two of the amended motion, or, in the alternative, conduct an evidentiary hearing on the allegations.

Affirmed in part, reversed in part, and remanded with directions.

BENTON, C.J., VAN NORTWICK, and SWANSON, JJ., concur.

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79 So. 3d 76, 2011 Fla. App. LEXIS 20271, 2011 WL 6352302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willich-v-state-fladistctapp-2011.

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