Smith v. State, 807 So. 2d 755 (Fla. 4th DCA 2002). · Go Syfert
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Smith v. State, 807 So. 2d 755 (Fla. 4th DCA 2002). Cases Citing This Book View Copy Cite
6 citation events (6 in the last 25 years) across 2 distinct courts.
Strongest positive: Johnson v. State (fladistctapp, 2003-09-24)
Top citers, strongest first. 2 distinct citers. How cited ↗
cited Cited as authority (rule) Johnson v. State
Fla. Dist. Ct. App. · 2003 · confidence medium
See Willis v. State, 840 So.2d 1135, 1136 (Fla. 4th DCA 2003); Smith v. State, 807 So.2d 755, 756 (Fla. 4th DCA 2002); Peffley v. State, 766 So.2d 418 (Fla. 4th DCA 2000).
cited Cited "see" Willis v. State
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See Smith v. State, 807 So.2d 755 (Fla. 4th DCA 2002).
Retrieving the full opinion text from the archive…
Jessie J. SMITH, Appellant,
v.
STATE of Florida, Appellee.
4D01-3342.
District Court of Appeal of Florida, Fourth District.
Feb 13, 2002.
807 So. 2d 755
2002 WL 215301
Per Curiam.
Cited by 4 opinions  |  Published

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.

PER CURIAM.

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[*756] 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.