Peffley v. State , 766 So. 2d 418 ( 2000 )

766 So. 2d 418 (2000)

Charles L. PEFFLEY, Appellant,
v.
STATE of Florida, Appellee.

No. 4D00-1762.

District Court of Appeal of Florida, Fourth District.

August 23, 2000.

Charles L. Peffley, Miami, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Charles L. Peffley appeals from the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further review of two of Peffley's issues.

Peffley was charged with and, after a jury trial, convicted of attempted second degree murder. Peffley alleges that his trial counsel was ineffective for not requesting an instruction on attempted voluntary manslaughter, and for objecting to the trial court's offer to instruct on aggravated battery as a lesser included offense. We find both issues legally sufficient and not refuted by the record provided. See State v. Wimberly, 498 So. 2d 929 (Fla. 1986); Sims v. State, 740 So. 2d 1256 (Fla. 1st DCA 1999); Oehling v. State, 659 So. 2d 1226 (Fla. 5th DCA 1995).

Accordingly, we reverse and remand on this issue for the trial court to attach portions of the record that conclusively refute appellant's claim or to hold an evidentiary hearing. We affirm the trial court's summary denial as to all other grounds raised in the motion.

DELL, STEVENSON and HAZOURI, JJ., concur.