Montana v. State , 597 So. 2d 334 ( 1992 )

597 So. 2d 334 (1992)

Darryl MONTANA, Appellant,
v.
STATE of Florida, Appellee.

No. 91-3088.

District Court of Appeal of Florida, First District.

April 2, 1992.

Appellant pro se.

No appearance for appellee.

PER CURIAM.

Darryl Montana has appealed an order of the trial court summarily denying his motion for post-conviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm in part and reverse in part.

In February 1989, Montana was convicted of second-degree murder. His conviction was affirmed without opinion. Montana v. State, 559 So. 2d 1141 (Fla. 1st DCA 1990). Montana filed the instant motion in August 1991, alleging insufficiency of the evidence, erroneous admission of hearsay, ineffective assistance of counsel, and that his sentence was illegal because the trial court exceeded the recommended guidelines range without providing written reasons. The trial court summarily denied the motion, finding that "most" of the issues raised by Montana could and should have been raised on direct appeal, and that no legal basis for ineffective assistance of counsel had been stated. The illegality of Montana's sentence was not specifically addressed.

We agree with the trial court that the allegations of insufficiency of the evidence and the erroneous admission of hearsay could have been raised on Montana's direct appeal, and hence are improperly raised in a Rule 3.850 motion. We also find, as did the trial court, that Montana has not stated a legally sufficient basis for his allegation of ineffective assistance of counsel. However, although his allegation of an illegal sentence, if true, would entitle him to relief, the trial court did not address this allegation in its order. We therefore affirm the order appealed as to all grounds except that alleging an illegal sentence. As to that issue, we reverse and remand either for attachment of those portions of the files and records conclusively showing that Montana is not entitled to relief, or for further proceedings under Rule 3.850.

Affirmed in part, reversed in part and remanded with directions.

JOANOS, C.J., and SMITH and BARFIELD, JJ., concur.