LAWTON COHEN v. STATE OF FLORIDA (2023)

The defendant appeals an order summarily denying his rule 3.850 motion for postconviction relief. On appeal, he challenges the denial of all ineffective assistance of counsel claims raised in the motion. We affirm the denial of relief as to all claims except one, upon which we reverse and remand for further proceedings.

In the defendant's second claim for relief, he asserted that trial counsel provided ineffective assistance by agreeing to the giving of a jury instruction on the lesser offense of attempted leaving the scene of an accident involving death. The defendant argued the evidence did not support the giving of the attempt instruction. On the authority of Badger v. State, 933 So. 2d 729 (Fla. 4th DCA 2006), we reverse the denial of relief as to this claim, and remand for either an evidentiary hearing or the attachment of records conclusively refuting the claim. See id. at 730 (reversing the summary denial of a claim that counsel was ineffective for failing to object to an attempted burglary instruction where the evidence showed only a completed burglary).

Affirmed in part, reversed in part, and remanded for further proceedings.

PER CURIAM.

GERBER, CONNER and ARTAU, JJ., concur.