ALLEN v. STATE (2012)

Krystal Rose Allen appeals the summary denial of her motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Allen was sentenced to ten years' prison followed by fifteen years' probation after a jury convicted her of aggravated child abuse with great bodily harm. This court per curiam affirmed her conviction and sentence on appeal. Allen v. State, 27 So.3d 30 (Fla. 2d DCA 2010) (table decision).

In her motion, Allen argues that trial counsel was ineffective for failing to move for a judgment of acquittal on the ground that the State's evidence was insufficient to support the jury's verdict. Our records indicate that on appeal, Allen raised this exact argument and also challenged the sufficiency of the State's evidence at trial. The postconviction court denied the motion on the ground that Allen may not raise claims in a postconviction motion that could have been or were raised on direct appeal. However, “unless a direct appeal is affirmed with a written opinion that expressly addresses the issue of ineffective assistance of counsel, an affirmance on direct appeal should rarely, if ever, be treated as a procedural bar to a claim for ineffective assistance of counsel on a postconviction motion.” Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002); see also Hamilton v. State, 979 So.2d 420, 422–23 (Fla. 2d DCA 2008). Accordingly, we conclude that the trial court improperly denied Allen's postconviction motion on the ground that the ineffective assistance of counsel issue was raised on direct appeal.

Because the postconviction court's determination on this issue did not conclusively refute Allen's claim, we remand to the postconviction court for reconsideration of Allen's motion on the merits. If the postconviction court should again summarily deny this claim, it must attach portions of the record conclusively refuting Allen's allegations.

Reversed and remanded.

KELLY, Judge.

DAVIS and VILLANTI, JJ., Concur.