Bacon v. State , 997 So. 2d 1139 ( 2008 )

997 So. 2d 1139 (2008)

Carlton Paul BACON, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D08-2586.

District Court of Appeal of Florida, Third District.

November 19, 2008. Rehearing Denied January 5, 2009.

Carlton Paul Bacon, in proper person.

Bill McCollum, Attorney General, for appellee.

Before SUAREZ, CORTIÑAS, and ROTHENBERG, JJ.

Prior report: 970 So. 2d 371.

SUAREZ, J.

Carlton Paul Bacon appeals from a trial court order denying his petition for relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

The trial court failed to address, in its order denying relief, the issue raised by Bacon in his amended 3.850 petition regarding trial counsel's failure to object to the "and/or" clause in the instructions on conspiracy that were read to the jury. We remand this sole issue to the trial court with instructions to address the merits of Bacon's claim in light of Garzon v. State, 980 So. 2d 1038 (Fla.2008), and, if the issue has no merit, to attach records that conclusively refutes the defendant's claims. We affirm the order on appeal in all other respects.

Affirmed in part, reversed in part.