Simo v. State ( 2001 )

790 So. 2d 1190 (2001)

Gary SIMO, Appellant,
v.
STATE of Florida, Appellee.

No. 4D00-1401.

District Court of Appeal of Florida, Fourth District.

July 25, 2001.

Gary Simo, Wewahitchka, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

This is an appeal by Gary Simo from a trial court order which summarily denied his motion for post-conviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm in part and reverse and remand in part.

Appellant was convicted of two counts of armed robbery, for which he received concurrent life sentences. He appealed to this court, which affirmed his convictions and sentences in Simo v. State, 676 So. 2d 431 (Fla. 4th DCA 1996).

Appellant filed a motion for post-conviction relief alleging five claims of ineffective assistance of his trial counsel. At issue here, based on appellant's brief, are grounds one and three. In ground one, appellant alleged ineffective assistance of his trial counsel for failing to object and in waiving objection to the presence of a sleeping juror. Ground three is a claim of ineffective assistance of counsel in failing to accurately advise appellant of the consequences of testifying in his own defense.

We find both claims legally and factually sufficient, and that the trial court erred in summarily denying them based on the State's response and record attachments. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Evans v. State, 737 So. 2d 1167 (Fla. 2d DCA 1999). See also Oisorio v. State, 676 So. 2d 1363 (Fla.1996); Britton v. State, 604 So. 2d 1288, 1290 (Fla. 2d DCA 1992).

Accordingly, we reverse and remand the trial court's summary denial of grounds one and three of the motion for post-conviction relief for an evidentiary hearing or record attachments which conclusively refute these claims of ineffective assistance of trial counsel, and affirm as to the other grounds.

WARNER, FARMER and HAZOURI, JJ., concur.