Opinion
No. 1D08-0146.
October 29, 2008.
Appeal from the Circuit Court, Duval County, Mallory D. Cooper, J.
James T. Miller, Jacksonville, for Appellant.
Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
The appellant challenges the trial court's order summarily denying his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the circuit court erred in summarily denying the appellant's facially sufficient third claim, we reverse as to that claim. The appellant's remaining claims are affirmed without further comment.
The appellant's third claim alleged that trial counsel failed to object to a letter from the victim's brother submitted for consideration during sentencing when the letter was not authenticated, not handwritten and not signed. The circuit court held that, pursuant to section 921.143, Florida Statutes, a statement from a victim's family member may be considered at the sentencing hearing and the appellant failed to demonstrate any error by counsel. However, section 921.143, Florida Statutes, requires that the victim or family member either appear before the sentencing court under oath or submit a written statement under oath to the state attorney, neither of which occurred in this case. Furthermore, it is apparent that the sentencing judge relied on the erroneously admitted evidence when imposing appellant's sentence. Therefore, it appears that the circuit court erred in summarily denying this facially sufficient claim.
Accordingly, we reverse the summary denial of the appellant's third claim and remand to the trial court for an evidentiary hearing.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.
KAHN, WEBSTER, and VAN NORTWICK, JJ., concur.