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776 So. 2d 992

Turnage v. State

District Court of Appeal of Florida

Decided January 17, 2001

District Court of Appeal of Florida · decided 2001-01-17

Cited by 2 later decisions — most recently October 2001

2 state decisions

Relies on 744 So. 2d 413 - Provenzano v. Moore · 734 So. 2d 1153 - Pilkington v. State

Good law ✅— No negative treatment on recordhow we know

Decided 2001-01-17

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PER CURIAM.

¶1Darrel Turnage challenges the trial court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Turnage raises four grounds for relief, only one of which has merit. We reverse and remand for further proceedings on his fourth claim that his counsel was ineffective for failing to object to a sentence he contends is illegal due to an improper upward departure. We affirm Turnage’s remaining claims without discussion.

¶2In its response below, the state contends that Turnage’s claim was properly denied because it should have been raised on appeal. The state provided no record attachments with its response. The trial court, adopting the state’s response, summarily denied Turnage’s motion. We disagree with the trial court’s order as to Turnage’s fourth claim.

¶3Allegations of ineffective assistance of counsel for trial counsel’s failure to object to the reasons given to support an upward departure sentence is cognizable in a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. See Pilkington v. State, 734 So.2d 1153 (Fla. 2d DCA), review denied, 744 So.2d 456 (Fla.1999).

¶4On remand, the trial court shall either attach those portions of the record that conclusively refute this claim or, shall conduct an evidentiary hearing on them to determine whether counsel was ineffective.

¶5REVERSED and REMANDED.

DELL, FARMER and SHAHOOD, JJ., concur.
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