PRIMITIVO R. MORALES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2013-07-24
No. 4D10-3180
DAMOORGIAN, C.J., WARNER and CIKLIN, JJ., concur.
120 So. 3d 67 Florida District Court of Appeal, Fourth District (2013)

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Holding

The court held that the record did not refute one of the claims raised in the postconviction motion, warranting a reversal in part.


Facts & Procedural History

Morales was convicted of sexual battery and lewd molestation and sentenced to imprisonment and probation. He filed a postconviction motion alleging in…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Primitivo Morales appeals the summary denial of his six point postconviction motion. See Fla. R.Crim. P. 3.850. Because the record does not refute one of the claims raised, we reverse, in part, and affirm the remaining claims without further discussion.

Following a jury trial, Morales was convicted of one count of Sexual Battery by a Person in a Position of Familial or Custodial Authority (Count I) and one count of Lewd or Lascivious Molestation (Count II) with a victim older than twelve but younger than sixteen years old. He was sentenced to thirty years imprisonment on Count I, followed by fifteen years sex offender probation on Count II.

Morales alleges, in Claim 5, that counsel misadvised him that the jury would learn the nature of his prior convictions had he chosen to testify in his own defense. He *68ultimately decided not to testify based upon this alleged advice. See Curtis v. State, 689 So.2d 423, 423 (Fla. 4th DCA 1997); Hicks v. State, 666 So.2d 1021, 1023 (Fla. 4th DCA 1996). The State concedes that an evidentiary hearing is warranted on this claim. We remand for further proceedings.

Affirmed in Part, Reversed in PaH and Remanded.

DAMOORGIAN, C.J., WARNER and CIKLIN, JJ., concur.


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