Gardner v. State , 550 So. 2d 176 ( 1989 )

550 So. 2d 176 (1989)

Samuel GARDNER, Appellant,
v.
STATE of Florida, Appellee.

No. 89-1069.

District Court of Appeal of Florida, First District.

October 20, 1989.

Samuel Gardner, pro se.

No response for appellee.

SHIVERS, Chief Judge.

Appellant, Samuel Gardner, appeals the trial court's summary denial of his motion for post-conviction relief filed pursuant to Fla.R.Crim.P. 3.850. We affirm the trial court's denial of relief on grounds 3 and 5 of the motion, in which appellant alleged, respectively, that he was denied a speedy trial and the right to elect a guideline sentence. First, appellant's speedy trial argument could and should have been raised on direct appeal and, consequently, was improperly raised pursuant to Rule 3.850. Second, the sentencing guidelines are not applicable to appellant's underlying conviction and sentence for the capital felony of sexual battery of a child under the age of 12. Section 921.001(4)(a), Florida Statutes.

Grounds 1, 2, 4, and 6 of appellant's motion, however, all state claims of ineffective assistance of counsel and, as such, were properly raised pursuant to Rule 3.850. We therefore reverse and remand the summary denial of relief on those grounds, with instructions for the trial court to either attach portions of the files and records conclusively showing appellant to be entitled to no relief or, in the alternative, to order the State Attorney to file an answer and thereafter to determine whether an evidentiary hearing is necessary. Fla.R.Crim.P. 3.850.

AFFIRMED in part, REVERSED, and REMANDED.

WENTWORTH and WIGGINTON, JJ., concur.