Opinion
Case No. 4D01-3342
Opinion filed February 13, 2002.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; Marc A. Cianca, Judge; L.T. Case No. 98-1725 CFA.
Jessie J. Smith, West Palm Beach, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
Jessie J. Smith appeals from the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further review of one of Smith's issues.
Smith was charged with burglary of a structure. A jury found him guilty of the charge. He alleges that his trial counsel was ineffective for not requesting an instruction on trespass as a lesser included offense. We find this issue legally sufficient and not refuted by the record provided. See Peffley v. State, 766 So.2d 418 (Fla. 4th DCA 2000); State v. Wimberly, 498 So.2d 929 (Fla. 1986); Sims v. State, 740 So.2d 1256 (Fla. 1st DCA 1999); Oehling v. State, 659 So.2d 1226 (Fla. 5th DCA 1995).
The record provided by the trial court that shows that Smith admitted to being on the burglarized premises does not conclusively refute his claim. Accordingly, we reverse and remand on this issue for the trial court to hold an evidentiary hearing. We affirm the trial court's summary denial as to all other grounds raised in the motion.
POLEN, C.J., STEVENSON and TAYLOR, JJ., concur.