Kelsey v. State

MICKLE, Judge.

In this appeal from the denial of appellant’s motion for post-conviction relief, filed pursuant to Fla.R.Crim.P. 3.850, we affirm the denial of all of appellant’s claims for relief except for the allegation that trial counsel was ineffective in failing to request a jury instruction on the justifiable use of force. Appellant, who was convicted of resisting an officer with violence, claims that his defense at trial rested upon his theory of justifiable use of force against the officer, and that the evidence adduced at trial was that the officer threatened him with a firearm and a night stick. Because the trial court’s order and attachments fail to demonstrate conclusively that appellant is entitled to no relief on this claim, we must reverse and remand for an evidentiary hearing for the purpose of rendering a determination on the merits, or for record attachments conclusively refuting this claim for relief. See Williams v. State, 656 So.2d 572 (Fla. 1st DCA 1995)(reversing denial of 3.850 claim that counsel was ineffective in failing to request jury instruction on justifiable use of non-deadly force).

AFFIRMED in part; REVERSED in part; REMANDED.

WEBSTER and PADOVANO, JJ., concur.