Sipple v. State , 928 So. 2d 484 ( 2006 )

928 So. 2d 484 (2006)

Jeffery Scott SIPPLE, Appellant,
v.
STATE of Florida, Appellee.

No. 5D06-323.

District Court of Appeal of Florida, Fifth District.

May 5, 2006.

Jeffery S. Sipple, Wewahitchka, pro se.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.

GRIFFIN, J.

We have elected to treat Jeffery Scott Sipple's response to our show cause order as an application for belated appeal and to grant it.

We conclude that only one issue has merit. Sipple argued that trial counsel was ineffective for failing to object to the jury instruction on the forcible felony exception to the use of deadly force. See Hawk v. State, 902 So. 2d 331 (Fla. 5th DCA 2005). Sipple was charged with only one forcible felony, second-degree murder, and he was convicted of culpable negligence manslaughter.

In its response to our order, the State acknowledges that the circuit court did not address this issue in its order denying Sipple's Rule 3.850 motion and that an evidentiary hearing appears to be necessary. Accordingly, we reverse the order on appeal and remand for this purpose.

REVERSED and REMANDED.

PLEUS, C.J., and ORFINGER, J., concur.