HUDSON v. STATE (2021)

District Court of Appeal of Florida, Third District.

Kelvin HUDSON, Jr., Appellant, v. The STATE of Florida, Appellee.

No. 3D21-1241

Decided: November 24, 2021

Before FERNANDEZ, C.J., and EMAS, and BOKOR, JJ.

Clayton R. Kaeiser, for appellant. Ashley Moody, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.

Kelvin Hudson, Jr., appeals the trial court's summary denial of his motion for post-conviction relief based on ineffective assistance of trial counsel regarding an alleged, unpreserved error pertaining to a jury instruction on a lesser included offense. In his amended motion for post-conviction relief, appellant claimed that his trial counsel was also ineffective for failing to file a motion to dismiss based on stand your ground immunity. The trial court did not address the latter allegation when it denied the motion for post-conviction relief.

We affirm the order on appeal regarding the ineffective assistance of counsel claim pertaining to the jury instruction issue; however, because the trial court failed to address the issue regarding ineffective assistance of counsel for failing to file a motion to dismiss based on stand your ground immunity, we reverse and remand to the trial court for further proceedings to consider and rule on this issue. See McAbee v. State, 873 So. 2d 545 (Fla. 2d DCA 2004).

Affirmed in part, reversed in part and remanded with instructions.

PER CURIAM.

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