Bailey v. State , 2005 Fla. App. LEXIS 16230 ( 2005 )

SALCINES, Judge.

Ruben Junior Bailey appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Bailey raised eight grounds of ineffective assistance of counsel. We affirm without comment as to the denial of grounds one, two, three, five, six, and eight. We reverse as to ground four. We affirm, but write to clarify as to ground seven.

In ground four of his motion, Bailey claims that counsel was ineffective for failing to request a jury instruction on attempted robbery, as a lesser-included offense of armed robbery. Because Bailey raised similar arguments in grounds one and four of his motion, the trial court combined the grounds. The trial court relied on the reasoning in ground one of its order to summarily deny ground four of Bailey’s motion. However, the reasoning in ground one of the trial court’s order does not apply to ground four of Bailey’s motion. As a result, the trial court failed to address the issue raised in ground four of Bailey’s motion. Accordingly, we reverse and remand for the trial court to consider ground four.

We affirm as to ground seven of his motion. We note that the trial court’s order had a specific ruling for ground seven. However, this ruling did not address the actual argument made by Bailey in this ground. We affirm the denial of this ground because Bailey’s argument is facially insufficient. Bailey failed to allege, nor does the record provide, any support as to how the alleged testimony of the witness, Eduveha Bennett, would have been admissible at trial. See § 90.804(2)(c), Fla. Stat. (2001).

Affirmed in part, reversed in part, and remanded.

CASANUEVA and DAVIS, JJ., Concur.