Abrams v. State , 777 So. 2d 1205 ( 2001 )

777 So.2d 1205 (2001)

Sidney ABRAMS, Appellant,
v.
STATE of Florida, Appellee.

No. 4D00-1625.

District Court of Appeal of Florida, Fourth District.

February 21, 2001.

Frank B. Kessler, Lake Worth, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Steven R. Parrish, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

We affirm the circuit court's order denying appellant's motion for postconviction relief, except as to appellant's claim of ineffectiveness of counsel based on misadvice regarding appellant's right to a jury trial. In that claim, appellant alleged trial counsel told him that the only way he could testify on his own behalf was if he opted for a bench trial, so appellant did so in order to testify. Although, as appellee argued, appellant did not show any prejudice arising from the misadvice, see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we find that appellant states a sufficient claim for relief. In this particular case, the fundamental right to a jury trial allegedly was violated. Certain structural defects in the trial itself, which so affects the trial, require automatic reversal: one of those is the denial of a jury trial. McGurk v. Stenberg, 163 F.3d 470 (8th Cir.1998). Taking appellant's allegations as true, counsel's advice resulted in the denial of a jury trial to appellant. Accordingly, we reverse and remand for a hearing on that claim, or for record attachments that conclusively refute appellant's claim.

WARNER, C.J., DELL and HAZOURI, JJ., concur.