GASTON v. STATE (1999)

Richard Gaston appeals the denial on remand of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.   Gaston raised five grounds for relief in his motion.   When this court considered his first appeal we reversed and remanded on one issue only.   See Gaston v. State, 721 So.2d 399 (Fla. 2d DCA 1998).   Although we did not explicitly hold that Gaston's other claims were without merit, that holding is implicit in our decision.

However, we must again reverse the trial court's order denying Gaston's claim that his counsel was ineffective in failing to file a motion to suppress.   Although the court has now attached the portions of the record upon which it relied, that record does not refute Gaston's claim that the police officers only discovered the evidence in question after unlawfully entering his secured backyard.   See State v. Morsman, 394 So.2d 408 (Fla.1981).   Therefore, we reverse and remand for an evidentiary hearing on this issue.

Affirmed in part;  reversed in part;  and remanded.

PER CURIAM.

ALTENBERND, A.C.J., and FULMER and SALCINES, JJ., Concur.