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Willich v. State

Florida Court of Appeal, First District

December 20, 2011

Allen Robert WILLICH, Appellant,
v.
STATE of Florida, Appellee.

Rehearing Denied Feb. 9, 2012.

An appeal from the Circuit Court for Duval County. J. Bradford Stetson, Judge.

Allen Robert Willich, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Allen Willich appeals the denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm except insofar as his claim of ineffective assistance of counsel, set forth in ground two of the amended motion for postconviction relief. In ground two, Mr. Willich stated a cognizable claim of ineffective assistance of counsel in alleging that trial counsel failed to impeach Patricia Salamanca with her prior inconsistent statement to investigating officers. See, e.g., Delarosa v. State, 24 So.3d 741, 742 (Fla. 2d DCA 2009) (concluding that allegation that trial counsel was ineffective for failing to impeach a state witness with a prior inconsistent statement was legally sufficient). Because the claim is not conclusively refuted by the record on appeal, we reverse the trial court's order as to disposition of ground two only, and remand to the trial court with directions that it either attach portions of the record conclusively refuting the allegations in ground two of the amended motion, or, in the alternative, conduct an evidentiary hearing on the allegations.

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


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