ALVARADO v. STATE (2008)

Nicholas Alvarado seeks review of the trial court's orders denying his motion for postconviction relief, which was filed pursuant to Florida Rule of Criminal Procedure 3.850.   Alvarado filed a motion and amendment raising a total of eleven claims.   The postconviction court summarily denied seven of these claims and denied four claims after a hearing.   We affirm the denial of Alvarado's claims with the exception of a portion of claim one, which it appears the postconviction court failed to consider.   We reverse and remand for consideration of this claim only.

In claim one, Alvarado asserted that trial counsel was ineffective for failing to object to various improper jury instructions.   As part of this claim, Alvarado argued that the instruction on sale of methamphetamine omitted the “guilty knowledge” element.   It does not appear that the court addressed this specific part of claim one.   Our review of the jury instructions confirms Alvarado's assertion that the sale instruction did not contain an instruction regarding the “guilty knowledge” element.   This element, which requires proof that the defendant knew of the illicit nature of a substance, was an element of the crime under the statute that was in effect when the underlying offense was committed.   See Balmori v. State, 985 So.2d 646, 650 (Fla. 2d DCA 2008).   Accordingly, we reverse and remand for the court to consider this part of claim one.

Affirmed in part;  reversed in part;  and remanded.

STRINGER, Judge.

NORTHCUTT, C.J., and SILBERMAN, J., Concur.