Barnes v. State , 983 So. 2d 47 ( 2008 )

983 So.2d 47 (2008)

David L. BARNES, Appellant,
v.
STATE of Florida, Appellee.

No. 1D07-5058.

District Court of Appeal of Florida, First District.

May 5, 2008.

David L. Barnes, Appellant, pro se.

Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

David L. Barnes appeals the trial court's denial of his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, the appellant raised eight claims for relief. Because the order denying relief together with attachments does not conclusively refute the appellant's allegations in grounds one and four of the postconviction motion, we reverse. All other issues raised in the appellant's motion are affirmed without further discussion.

We reverse the trial court's denial of the appellant's claim in ground one of the motion that counsel was ineffective for failing to request a jury instruction on the justifiable use of non-deadly force. Mathis v. State, 863 So.2d 464, 465 (Fla. 1st DCA 2004)("When the evidence fails to establish as a matter of law whether the type of force used was deadly or non-deadly, the defendant is entitled to instructions on the justifiable use of both types of force."). We also reverse the trial court's denial of ground four, which alleged defense counsel was ineffective for failing to object to improper closing argument by the prosecutor. We remand for the trial court to attach portions of the record to conclusively refute the appellant's claims in grounds one and four or conduct an evidentiary hearing.

REVERSED in part, REMANDED in part, and AFFIRMED in part.

BARFIELD, WOLF, and HAWKES, JJ., concur.