Christopher Charles McIntosh v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-3776
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CHRISTOPHER CHARLES
MCINTOSH,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Alachua County.
Mark W. Moseley, Judge.
October 18, 2018
PER CURIAM.
Christopher Charles McIntosh, who was convicted of
possession of a firearm by convicted felon, filed a motion for
postconviction relief which raised four claims of ineffective
assistance of counsel. We affirm the trial court’s summary denial
of Issues 1, 2, and 4 without further comment. However, we
conclude that Issue 3 is a legally sufficient claim and is not refuted
by the record attachments.
In Issue 3, Appellant asserted that counsel was ineffective for
failing to move for a judgment of acquittal following the close of
the State’s case. We conclude that he pled a cognizable and legally
sufficient claim. See Griffin v. State, 101 So. 3d 399, 399 (Fla. 1st
DCA 2012) (“The appellant’s rule 3.850 motion is facially sufficient
to assert a claim of ineffective assistance of counsel to the extent
that it alleges a failure to move for a judgment of acquittal on the
charged offense of burglary with damage in excess of $1,000.00.”).
Additionally the court’s record attachments do not refute this
claim. See Ortiz v. State, 968 So. 2d 681, 684 (Fla. 1st DCA 2007)
(“[T]he trial court must attach portions of the record that
conclusively refute the claims in order to properly issue a
summary denial.”; see also Fla. R. Crim. P. 3.850(f)(5) (“[A] copy of
that portion of the files and records that conclusively shows that
the defendant is entitled to no relief shall be attached to the final
order.”). Accordingly, we reverse the denial of Issue 3, for the trial
court to hold a hearing or attach portions of the record which
conclusively refute the claim.
AFFIRMED in part, REVERSED in part, and REMANDED.
ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Christopher Charles McIntosh, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg,
Assistant Attorney General, Tallahassee, for Appellee.
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